NIRMAL SHARMA Vs. JAGDISH CHANDER JAITLEY

JUDGEMENT

(1.) Appellant has assailed the order of the Additional District Judge, Delhi, whereby he dismissed the application of the appellant (respondent before the first appellate Court) under Order 41 Rule 21 of Code of Civil Procedure (in short the CPC). The learned Additional District Judge, Delhi, refused to rehear the appeal which had been decided ex-parte against this appellant. His application was dismissed primarily on two grounds firstly it was barred by time and secondly this appellant failed to show sufficient cause for his non-appearance.

(2.) In order to appreciate the challenge the relevant facts which require consideration are that respondent herein filed a suit for declaration against the predecessor in interest of this appellant namely Bhagat Ram as well as against Union of India. After Bhagat Ram's death his legal heirs were substituted. In the suit the respondent herein based his claim on the fact that he had a verified claim of Rs.29,840.00 beside compensation of Rs.8,760.00 . He was in occupation as one of the four authorised allotees of House No.XV/595, Kait Wali Gali, Bazar Sangatarashan, Paharganj, New Delhi since September,1979. He was subsequently allotted a part of neighbouring house No.XV/582,Kait Wali Gali, Bazar Sangtarashan, Paharganj, Delhi. One Mr.Kali was also authorised allotee in respect of that house. Both the houses were evacuee properties forming part of the compensation pool. Pursuance to the notice issued to him he expressed his willingness for transfer of the said two properties in his name. He, however, gave preference for house No.XV/595 against his compensation. He did not exercise option with regard to house No.XV/582. The Managing Officer vide order dated 21st February,1958 held him eligible for the transfer of the said house and Mr.Kali for house No.XV/582. Bhagat Ram filed an appeal against the said order. The appeal filed by Bhagat Ram against respondent as well as Kali were dismissed by the Assistant Settlement Commissioner. Bhagat Ram filed revision petition before the Deputy Chief Settlement Commissioner. The order passed by the Managing Officer as well as of the Assistant Settlement Commissioner were set aside ex-parte vide order of Deputy Chief Settlement Commissioner dated 29th October,1958. The respondent herein in the meantime received a letter from the Regional Settlement Commissioner informing him that House No.XV/595 had been transferred in his name and that his compensation stood adjusted towards part price of the said house. He was asked to pay the balance amount. He offered the balance amount but the same was not accepted. When the respondent came to know about the ex-parte order of the Deputy Chief Settlement Commissioner dated 29th October,1958, he filed an application seeking re-hearing of the revision. The same was dismissed vide ex-parte order dated 13th February,1959. The Deputy Chief Settlement Commissioner ordered the transfer of house in question to Bhagat Ram. The order of the Deputy Chief Settlement Commissioner was challenged but was rejected by the appellate authority on 27th May,1959. He was not informed of the order passed under Section 33 of the DP(C&R) Act (in short the Act). He came to know about the passing of the order under Section 33 of the Act on 17th January,1967 when copy of the letter was produced by Bhagat Ram in High Court in writ proceedings. In his suit this respondent challenged the order of the Deputy Chief Settlement Commissioner and the order of the appellate authority passed under Section 33 of the Act, on the grounds that the same were inconsistent with the provisions of the Act and the rules framed thereunder. His main grievance was that being occupant of the house he was entitled to transfer of the said house. He had already paid the price of the house. Hence the impugned orders were illegal and against the principle of natural justice. He wanted a declaration to the effect that orders dated 13th February,1959 and 27th July,1959 be declared illegal, ultra vires and without jurisdiction. The suit was contested by the predecessor in interest of the present appellant thereby raising preliminary objection about the maintainability of the suit as well as the jurisdiction of the Civil Court coupled with the fact that the suit was barred by time and hit by the principle of resjudicata. The suit was dismissed by the Sub-Judge on two grounds namely the Civil Court had no jurisdiction and the suit was barred by time. Against that order this respondent filed appeal which was listed as RSA No.98/81. Notice of the appeal was received by respondent No.2 in that appeal i.e. Mr.Chaman Lal, son of Bhagat Ram predecessor in interest of the present appellants. Other legal heirs of Bhagat Ram were impleaded as respondents 3 to 5. Respondent No.1 was Union of India. On 29th January,1981 as per record of the first appellate Court respondent No.2 i.e. Chaman Lal son of late Shri Bhagat Ram appeared in person. So far as Union of India and other LRs namely Shri Mohan Lal and Smt.Sarla Mudgal, they were proceeded ex-parte. Notice was issued afresh to Smt.Kailash Wati Sharma, respondent No.5, another legal heir of late Bhagat Ram. Matter was adjourned to 3rd March,1981 on which date Chaman Lal respondent No.2 again appeared in person. Since notice to respondent No.5 had not been served hence the case was adjourned to 3rd April,1981. Respondent No.5 was served for 3rd April,1981, but she did not put in appearance hence proceeded ex-parte. On 3rd April,1981 Chaman Lal respondent No.2 did not appear, therefore, the court proceeded him ex-parte as well.

(3.) After hearing arguments of the appellants and the Union of India, the first appellate court allowed the appeal and set aside the judgement and order of the trial court. First appellate court upheld the jurisdiction of the Civil Court to try the suit. Further that the suit was not barred by time. The first appellate court vide its order dated 13th February,1959 declared that the order passed by the Deputy Chief Settlement Commissioner Gajender Singh and the order in revision dated 27th July,1959 passed by Shri S.Prasad, Deputy Secretary to the Government of India were illegal, without jurisdiction, and therefore, not binding on that appellant/ respondent herein. These appellants thereafter moved an application under Order 41 Rule 21 Civil Procedure Code for setting aside ex-parte order and seeking opportunity to address arguments on the appeal. Their application was dismissed by the impugned order being time barred and that no sufficient cause had been shown for non-appearance.