LexM/S. JOHN IMPEX (PVT.) LTD. & ANR. versus ATHUL KAPUR & ORS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
(2009] 11 S.C.R. 863
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M/S. JOHN IMPEX (PVT.) LTD. & ANR.
A
v.
ATHUL KAPUR & ORS ..
·(Civil Appeal No. 4960 of 2009)
JULY 31,.-2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.)
Code of Civil Procedure, 1908 - Order 9 r. 13 - Suit for
eviction - Decided ex-parte against the tenant- Setting aside
of the ex-parte decree sought - Held: The facts of the case c
show, that the intention of the tenant was to delay the court
proceed[ngs - Possession of the suit premises delivered to
the landlord and partition thereof effected as per court order
between co-sharers - Tenant not entitled to any kind of relief.
A suit for eviction praying also for recovery of arrears D
of rent, was filed by respondents-landlord against the
appellant-tenant before High Court. The case was posted
for final arguments. Consequent upon enhancing of
pecuniary jurisdiction of the District Courts, the suit was
E
transferred to District Court. The court issued notice to
the parties. However, the service thereof was disputed by
the tenant. Respondent-landlord had also filed an
application under Ordet 38 Rule 5 and Order 39, Rule 1
and Section 151 CPC. Issuance of notice of motion on
)
the application was admitted by the appellant. However,
F
appellant did not appear before the Court. The suit was,
therefore, decreed ex-parte. The application for setting
aside the ex-parte decree was dismissed. The appeal
against the order was also dismissed by High Court.
Hence the present appeal.
G
Dismissing the appeal, the Court
;
HE:D: 1. No sufficient or cogent reason has been
863
H
864
SUPREME COURT REPORTS
[2009] 11 S.C.R.
A assigned by the appellants as to why despite receipt of
..
the notice of the application, they did not appear before
the Court of the Additional District Judge. The plea that
the appellants were not conversant with the Hindi
language cannot be accepted. A copy of the summons
B shows that it was both in Hindi as well as in English
language. [Para 11] [870-E-F]
2. A finding of fact had been arrived at by the
Additional District Judge that having regard to the
quantum of rent being above Rs.6,500/- per month, the
C provisions of the Delhi Rent Control Act will have no
application. It had further been found that the tenancy in
respect of the premises had legally been determined.
Order IX Rule 13 CPC provides for setting aside ex parte
decree passed against the defendants. The Court, in
D terms of the aforementionec:{ provision, is entitled. to
exercise its jurisdiction subject to its being satisfied that
: 1. the summons was not duly served; or 2. he was
prevented by any sufficient cause from appearing when
the suit was called on for hearing. [Paras 11 and 12) [870-
E G-H; 871-A-B]
3. The suit was transferred in the year 2004. It
appears that even during pendency of the suit before the
High Court, an application filed under Order IX Rule 9 was
F dismissed with costs. 1An appeal preferred thereagainst
was also dismissed. The High Court had directed the
appellant to pay arrears of 'Use and Occupation' charges.
The said order was not complied with. The appellants
furthermore did not appear in the suit with effect from
G 23.4.2002. Respondents filed an application praying for
a direction upon the appellants to deposit the 'Use and
Occupation' charges and on their failure to comply
therewith to strike off the defence. An application was
also filed by the respondent to direct the appellants to
make payment of rent. Copies of the said applications
H
..
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JOHN IMPEX (PVT.) LTD. & ANR. v. ATHUL KAPUR 865
& ORS.
were served upon the appellants. But despite the same,
A
the appellants did not appear before the Court. The sole
aim of the appellants was to delay the di.,posal of the suit.
The respondents, in terms of the order passed by the
High Court directing the appellants to deposit the
charges for occupying the tenanted premises, became
B
entitled to receive a sum of Rs.24,00,000/-. [Paras 13 and
14] [871-D-H; 872-A]
4. The articles stored in the premises had been put
on auction. The appellants even did not take part in the
auction proceedings. Indisputably possession of the C
premises in question had been delivered to the
respondent. Pursuant to the decree passed, a partition
has been effected amongst the co-sharers and the
property in question has been physically divided. In a
situation of this nature, the appellant is not entitled to any D
relief. [Para 15]Excerpt shown. Read the full judgment & AI analysis in Lexace.