LexASHOK NAGAR WELFARE ASSOCIATION AND ANR. versus R.K. SHARMA AND ORS.
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A ASHOK NAGAR WELFARE ASSOCIATION AND ANR. v. R.K. SHARMA AND ORS. DECEMBER 14, 2001 B [D.P. MOHAPATRA AND P. VENKATARAMA REDD!, JJ.] Code of Civil Procedure, 1908-0rder 5, Rules 15 and 18-Suit for restoration of possession-Summons not served on defendants-Single Judge of High Court ordering ex-parte decree-On appeal, Division Bench of High C Court setting aside the ex-parte decree and ordering fresh trial on merits holding that summons were not served on defendants-Held, justified. Specific Relief Act 1963--Section 6(3)-Delhi High Court Act, 1966- Section 10--Whether in view of bar enacted in Section 6(3) an intra court appeal under Section JO of Delhi High Court would be maintainable-Ques- D tion le.ft open. Constitution of India, 1950-Artic/e 136-Scope of-Held, confers a discretionary power on Supreme Court to inte~fere in suitable cases to advance the cause of justice-Does not con.fer a right of appeal on any party. E Plaintiff-petitioners instituted suits under Section 6 of the Specific Relief Act, 1963 against defendant-respondents for unauthorisedly occu- pying the suit property by forcibly dispossessing the plaintiffs. Single Judge of the High Court decreed the suits ex-parte. Defendant-respondents filed appeals before the Division Bench of the High Court alleging that no p notice was served on them and were not aware of the institution of suits. G H Division Bench of the High Court set aside the ex-parte decree passed by the Single Judge and ordered fresh trial of the suits on merits holding that summons were not served on the defendants and there was a clear viola- tion of the mandatory provisions of law in regard to service. Hence the present SLPs by the plaintiffs. On behalf of plaintiff-petitioners it was contended that no intra- court appeal lies by virtue of the bar enacted in Section 6(3) of the Specific Relief Act and that the provision in Section 10 of the Delhi High Court Act providing for appeal against the judgment of a Single Judge to a Division Bench will be of no avail to assume jurisdiction to entertain the appeal in • 662 I.._ ... r ... -. ASHOK NAGAR WELFARE ASSOCIATION v. R.K. SHARMA the face of the bar contained in Section 6(3). Dismissing the SLPs, the Court 663 HELD : 1.1. In view of the peculiar facts and circumstances of the case, the impugned order of the Division Bench of the High Court does not A require interference under Article 136 of the Constitution of India. B [671-B; 670-H] 1.2. Article 136 of the Constitution does not confer a right of appeal on any party, but it confers discretionary power on this Court to interfere in suitable cases. The bar under Article 136 is potential but not compulsive and is undoubtedly meant to advance the cause of justice. The instant case is not a fit case for interference under Article 136 even if it is presumed that appeal under Section 10 of the Delhi High Court Act was not main- tainable. [669-H; 670-A; 669-G] 2.1. The findings of the High Court reveal a pathetic state of affairs and bring to focus the factum of abuse of the process of Court by manipu- lating the records to show due service while there was none. Elementary care was not exercised by the officer concerned in checking up whether the summons were duly served and whether tbere was a case for effecting substituted service and whether mandatory provisions as to the service of summons were complied with. The entire picture was not placed before the Court and the Court readily accepted the report of the Deputy Registrar and proceeded on the basis that service was complete and the defendants failed to respond to the summons. [668-E-F] 2.2. What the High Court has done is to invalidate the ex-parte decrees which were obtained by questionable means fitting into descrip- tion of abuse of the process of the Court. If such decrees were allowed to remain, it would have resulted in miscarriage of justice. [ 670-G] 3. The question whether the Division Bench of High Court could entertain the appeal under Section 10 of the Delhi High Court Act despite the bar under Section 6(3) of the Specific Relief Act is left open. [670-F] Pritam Singh v. The State, [1950] SCR 453, followed. State of Bombay v. Rusy Mistry, AIR (1960) SC 391; Taherakhatoon ID) c D E F G by I.Rs. v. Salambin Mohammad, AIR (1999) SC 1104 and Vanita M. Khanolkar H 664 SUPREME COURT REPORTS (2001] SUPP. 5 S.C.R. A v. Pragna M. Pai and Ors., AIR
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