CM(M) 1329/2007 Madan Mohan v. Prem Lala Malhotra & Ors. Page 1 Of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: March 15, 2010 Date of Order: May 10, 2010 + CM(M) 1329/2007 % 10.05.2010 MADAN MOHAN ...Petitioner Through: Mr. Gautam Anand, Advocate Versus PREM LATA MALHOTRA & ORS. ...Respondents Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Vijay Tandon, Advocates JUSTICE SHIV NARAYAN DHINGRA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether judgment should be reported in Digest? JUDGMENT 1. By way of present petition under Article 227 of the Constitution of India, the petitioner has assailed orders dated 18th September 2007 and 29th October 2004 passed by learned Additional District Judge. 2. Vide order dated 29th October 2004, an application of the petitioner under Order 9 rule 13 for setting aside an ex parte decree was dismissed by learned Civil Judge and vide order dated 18th September, 2007 the appeal filed by the petitioner against the order of learned Civil Judge was CM(M) 1329/2007 Madan Mohan v. Prem Lala Malhotra & Ors. Page 2 Of 5 dismissed by learned ADJ. 3. Brief facts relevant for the purpose of deciding this petition are that a suit was filed by Jugal Kishore against his son and grandson who were in permissive possession of the suit premises and despite requests of Shri Jugal Kishore, had not been vacating that premises. Defendants no.1 and 2 i.e. the petitioner herein had already been disinherited from the properties by parents. 4. The mother had executed a Will disinheriting them from rights in her property as well. A public notice debarring the defendants from the properties was also published in the newspapers. These facts would only show that the relationship between plaintiff and defendants became bitter and the parties were litigating. 5. The plaintiff after filing of the suit, within few days died and his Lrs were brought on record. The summons in the suit were sent to the defendants through ordinary process as well as through registered cover right from September 1997 to March, 1998. The summons sent through registered post for 18th September 1998 to defendants no.1 and 2 came back with the report that the defendants no.1 and 2 were out of station and, therefore, the registry could not be delivered. The process server had taken service through ordinary process and it was reported to him by the family members of defendants no.1 and 2 that defendant no.1 had gone to hospital and defendant no.2 was out of station. It only seems that the efforts of defendants was to CM(M) 1329/2007 Madan Mohan v. Prem Lala Malhotra & Ors. Page 3 Of 5 prolong their stay in the premises, otherwise there was no reason that the family members of the petitioners should have refused to receive summons on behalf of the petitioner. The learned Civil Judge again directed service of summons for 13th November 1997 through registered post and through ordinary process. The report on registered cover was again that the defendants were out of station and the report of the process server on ordinary process was that defendants were not available at the time of his visit. Again none of the family members received summons from the process server. The Civil Court though, not bound to send summons again and again, despite the fact that the petitioner was bent upon not to receive summons, sent summons for 3rd time for 5th March, 1998 and the summons came back with the same report. Ultimately, the learned Civil Judge allowed an application under Order V Rule 20 CPC made by the plaintiff and directed service of summons through publication, on being satisfied that the petitioner was avoiding service of summons. The notice was published in the newspaper and the newspaper office also sent a copy of newspaper containing notice to the petitioner’s house through UPC. However, the petitioner chose not to appear and was proceeded ex parte. The petitioner then moved an application for setting aside the ex parte decree only when the decree holder sought execution of the decree and made a prayer to the Administrative Civil Judge for appointment of Bailiff. 6. The plea taken by the petitioner in the application for setting aside the CM(M) 1329/2007 Madan Mohan v. Prem Lala Malhotra & Ors. Page 4 Of 5 ex parte order was that the petitioner learnt about passing of decree when the plaintiff boasted that he would soon be thrown out of the house. Plaintiff then contacted the advocate and the advocate inspected the case file and came to know about passing of decree against the petitioner. The learned Civil Judge found that there was no way by which the petitioner could have come to know the name of Court who passed decree unless the petitioner had been keeping watch and had knowledge of the decree and the plea taken by the petitioner that he learnt about the passing of decree on inspection of record was found a false plea. During appeal, counsel for the petitioner told the appellate court that since it was known to the counsel that a decree can be executed only through bailiff so he checked the list of bailiffs assigned to different cases and found out the details of decree. This plea was discarded by the appellate court and rightly so because list of bailiffs is not made public. Bailiffs are assigned by Administrative Civil Judge on day to day basis and unless somebody knows particulars of his case, he cannot come to know even by inquiry as to which Bailiff has been assigned for execution of which decree. 7. In the application for setting aside the ex parte decree, it was not the case of the petitioner that the petitioner was out of station. The petitioner did not plead as to why all his family members did not take summons. The only plea taken by the petitioner was that it was not a proper service. This plea CM(M) 1329/2007 Madan Mohan v. Prem Lala Malhotra & Ors. Page 5 Of 5 was disbelieved by the two courts below and I consider that it was rightly disbelieved. 8. It is settled law that under Article 227 of Constitution of India, this Court cannot Court act as a Court of appeal to re-appreciate the material on the basis of which the two courts below had given concurrent findings. This Court under Article 227 of the Constitution of India had no jurisdiction to set aside the concurrent findings of two courts below who come to a conclusion that the petitioner had deliberately avoiding service and was duly served by publication. I find no reason to set aside this finding of two courts below. I find no force in this petition. The petition is hereby dismissed with no orders as to costs. May 10, 2010 SHIV NARAYAN DHINGRA J. rd