Babita vs Sandeep Kumar Goyal

Sudhanshu Dhulia, J

The supervisory jurisdiction of this Court has been invoked by the petitioner under Article 227 of the Constitution of India.

A suit being O.S. No. 01 of 2008 was filed by the plaintiff/respondent who is the nephew of the petitioner before the Civil Judge (Junior Division), Roorkee for mandatory injunction and declaration to the effect that the present petitioner be evicted from the premises, as according to the plaintiff/respondent, premises was given to him by his father by way of a Will dated 05.02.2004. The defendant/petitioner is admittedly the Aunt (Chachi) of the plaintiff/respondent. The petitioner/defendant is a widow who resides in the same premises along with her minor children.

The suit has been decreed ex-parte as the order dated 14.05.2009 passed by the Civil Judge (Junior Division), Roorkee shows that the present petitioner has not turned up before the court in spite of service. The plaintiff had built up his claim on the basis of the Will dated 05.02.2004 of his father, wherein, the "Will" only allowed the sister-in-law of the testator and the Aunt of the plaintiff to stay in the premises till 31.12.2004. This period has already been elapsed.

As the defendant has failed to put in her appearance in the matter, the matter proceeded ex parte and the suit was decreed on 14.05.2009. Thereafter, when the execution proceedings were initiated by the decree holder i.e. the plaintiff/respondent before this Court and the notice was served to the present petitioner on 19.01.2010, being aware of the said orders, the petitioner moved an application on the very next day i.e. on 20.01.2010 under Order 9 Rule 13 of CPC. This application of the petitioner has been dismissed by the court below on 09.11.2010 stating that the petitioner had knowledge of the summons and from the record available it shows that a notice was sent to the petitioner on 04.02.2008, which the defendant refused to take and there is a noting of the Process Server along with two witnesses. However, on examination of the photocopy of the record, it shows that though there was a mention that the petitioner has refused to take the notices and there was also name of two witnesses, but there was no mention of the address of these witnesses, which is the requirement under Order 5 Rule 17 of CPC. Order 5 Rule 17 of CPC reads as under:-

"O.5, R.17

Procedure when defendant refuses to accept service, or cannot be found.- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all the dues and reasonable diligence, cannot find the defendant (who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time) and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."

Evidently, there is no mention of the address of the witnesses and who these witnesses are not yet known. Moreover, it is not a case where an inordinate delay was caused by the defendant in any case.

In the interest of justice such an application under Order 9 Rule 13 of CPC must be examined liberally unless mala fide is shown on behalf of the applicant, which is not the case here. Moreover, the suit itself has been decreed on the basis of a "Will", the veracity of which is being denied the petitioner/defendant.

Therefore, in the interest of justice, the writ petition is allowed. The orders dated 09.11.2010 and 29.05.2012 are hereby set aside. The trial court shall examine all the aspects of the matter and pass appropriate orders as expeditiously as possible in accordance with law.

Meanwhile, till the matter is taken up by the court below, the respondent shall not proceed with the execution proceeding.