VERN KUMAR DATT Vs. ADITYA DATT

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India the petitioners have assailed an order passed by the learned ADJ on 26th August, 2009 whereby he allowed an application under Order 9 Rule 13 CPC made by the respondent and set aside the ex parte decree. It is submitted by the petitioners that respondent no.1 was duly served through substituted service but respondent no.1 did not appear despite service and respondent no.2, who was also served, appeared before the trial Court but did not file WS and ultimately his defence was struck off. The petitioners adduced evidence in respect of the case and the petitioners' witnesses were cross examined by Counsel for respondent no.2 and ultimately Court of Shri N.K.Kaushik ADJ on 7.4.2008 decreed the suit of the petitioners. Despite the decree passed by the trial court, issuing an injunction against respondent no.1, respondent no.1 illegally went ahead with sale of the property. He appointed Praveen Chopra as his attorney and Praveen Chopra sold the suit property to Rajiv Bahl. Rajiv Bahl had further sold property to Judge Chawla, who is respondent no.2 herein. Respondent no.2 had earlier been restrained from buying the common portion of the property but despite restraint order, respondent no.2 illegally went ahead with the sale and ultimately got the property transferred to himself. It is stated that respondents no.1 & 2 were hand in glove with each other and an application under Order 9 Rule 13 CPC was filed by the respondent no.1 & 2 in conspiracy with each other, for setting the ex parte decree against respondent no.1 passed on 7th August, 2004. The plea taken by respondent no.1 that he learnt about passing of the decree from the Writ Petition filed by the petitioner against respondents and MCD regarding unauthorized construction was a false plea. The other plea taken by the respondent for not being able to inspect the record due to advocates' strike was also a false plea. The application itself was hopelessly barred by time and was a mala fide exercise since both the respondents were very well aware of the proceedings pending before the Court of Shri N.K.Kaushik, ADJ. There was no document to show as to why the Counsel for the respondent could not inspect the file. It is also submitted that no advocate was prevented from inspecting the Court record during strike. It is submitted that the trial Court went wrong in allowing the application under Order 9 Rule 13 CPC and failed to appreciate the collusion between respondents no.1 & 2 and the fact that the respondent no.1 had been dealing and transacting in the property on one hand and evading appearance before the trial Court on the other.

(2.) In response to this petition it is submitted by the respondent that the respondent was never served in the suit. The allegations are that the petitioner deliberately did not make attempt to serve respondent no.1. Respondent no.1 was real brother of petitioner and the record would show that despite order of registered cover, no registered cover was filed. Ordinary summons had also not gone to the respondent no.1. Under these circumstances, respondent no.1 could not have appeared before the Court to contest the claim of the petitioner. A prayer is made that the petition be dismissed.

(3.) Order 9 Rule 13 CPC reads as under: