LexLALDHARI MISTRI (DEAD) THR. LRS. & ANR. versus VIJAY KUMAR
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[2017] 6 S.C.R. 407 LALDHARI MISTRI (DEAD) THR. LRS. & ANR. A v. VIJAY KUMAR (Civil Appeal No. 5780 of2008) JULY 13, 2017 B (R.F. NARIMAN AND SANJAY KISHAN KAUL, JJ.] Code of Civil Procedure, 1908 - Or. IX . r. I 3 - Ex parte decree - Setting aside of- Eviction decree was passed in favour of landlord- father of original appellant no.1 - Present suit for specific C performance on the ground that respondent purchased the said property from landlord when eviction was already ordered - Ex parte decree passed - Trial court and appellate court dismissed the application filed by appellants for setting aside the ex parte decree - On appeal, held: The records show that respondent never appeared before the lower courts - Commissioner who visited the D suit property also did not find him present in the suit property - Respondent was asked to appear before court personally for giving evidence, however, he never appeared and his evidence was closed - Respondent appears to be a doubtful e1Jfity - Case made out for setting aside the ex parte decree - Suit be heard on merits - Specific E performance. Allowing the appeal, the Court Held: 1. The first curious incident took place when an advocate Commissioner was sent to examine the tenanted premises. In a suit filed by respondent Vijay Kumar in order to F declare that the eviction decree obtained was void, the advocate Commissioner visited the premises, stated to be in possession of the said Vijay Kumar since 1989; However, there was no trace of Vijay Kumar. The second visit yielded the same result. Apart from this, in the proceedings under Order IX Rule 13, the trial Court specifically ordered, as a last chance, that Vijay G Kumar to appear before the Court personally for giving his evidence, and if he does not so appear, the evidence will be closed. Vijay Kumar never appeared and the evidence was so closed. On 21.11.2002, the Appellate Court in the Order IX Rule 13 H 407 408 SUPREME COURT REPORTS (2017] 6 S.C.R. A proceedings likewise recorded that though directed to be physically present in Court, Vijay Kumar WIJS not physically present and, in fact, at no point of time was ever physically present in any Court. (Para 8] (409-F-H; 410-A-B] 2. Having regard to the facts, it seems that Vijay Kumar is · B himself a doubtful entity. Even assuming that a person called Vijay Kumar existed, who has in fact filed proceedings both in 1986 and 1994, it is clear that the very nature of the suit of 1994 plus the fact that Vijay Kumar himself has never surfaced either in Court or at the tenanted premises, it can be said, at the very least, that this gentleman has been put up by the tenant in order C to stultify a final decree of eviction obtained by the landlord of the premises way-back in 1992. Having regard to the peculiar facts and circumstances of the case and in the interest of justice, orders dated 11.12.2001 passed by the trial Court, 29.05.2004 by the Appellate Court and the impugned order dated 31.08.2005 D passed by the High Court are set aside and as a result the ex- parte decree is set aside. It is further directed that suit no.14 of 1986 be set down for hearing on merits. (Paras 9, 10) (410-C-D) CNIL APPELLATE JURISDICTION : Civil Appeal No.5780 of 2008. · E From the Judgment and Order dated 31.08.2005 of the High Court F of Judicature at Patna in Civil Revision No.1139 of2004. Gaurav Agrawal, Adv. for the Appellants. Samir Ali Khan, Adarsh Upadhyay, Anurag Kishore, Advs. for the Respondent. The Judgment of the Court was delivered by R. F. NARIMAN, J. I. The present dispute arises out of an ex- parte decree of 09.06.1987 which was sought to be set aside under Order IX Rule 13 of the Code of Civil Procedure, 1908. G 2. The appellant before us, having knocked at the doors of the Court, has been turned away by not less than three Courts. In that it was stated that he had both been deemed to be served with the summons in the suit as well as the fact that from the date of knowledge of the ex- parte decree, had filed the application to set it aside a year and a half later. H LALDHARI MISTRI (DEAD) THR. LRS. & ANR. 409 v. VIJAY KUMAR (R.F. NARIMAN, J.] 3. Fact is indeed stranger than fiction, as the unfolding of the A drama of this case shows. This case has a somewhat chequered history, which we will advert to briefly. 4. The dispute in the present case relates to a residential house situated in Mung
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