The present petition was filed in Hon’ble High Court of Delhi under Order IX Rule 7 with Order XXXVII Rule 2(3) read with Rule 3(7) and Section 151 CPC seeking recall of the order dated 31.07.2020 whereby the defendants had proceeded ex-parte.
It was claimed that the defendants were the owners of the property bearing No. E-108, Malcha Marg, New Delhi (hereinafter ‘suit property’), since April 2018, the defendants were residing at 13, South Drive, DLF Chattarpur, New Delhi-110074 (hereinafter ‘Chhatarpur Property’). The defendants had placed on record two lease deeds executed between defendant No.1 (lessee) and ‘Mohinder Singh & Company’ (lessor) for the Chhatarpur Property. It was stated that the defendants continued to reside at the Chhatarpur property even after March 2020. And no fresh lease deed was executed on account of the COVID-19 pandemic.
Additionally, it was submitted that on a complaint being filed by the plaintiff against the defendants before the Economic Offence Wing, Delhi Police, New Delhi (EOW), the defendants joined the inquiry and submitted their reply dated 11.06.2019.
Therefore, the defendants had sought to recall the impugned order on the ground that the defendants were never served with the summons in the suit for the reason that at the relevant time, the defendants were not staying at the address mentioned in the memo of parties.
Learned counsel for the plaintiff emphasized the advance notice of the suit which was stated to be served on the defendants at the email address ‘[email protected]’. The aforesaid e-mail was also mentioned in the memo of parties and the summons in the suit were also served in pursuance of the order dated 22.05.2020. He further referred to paragraph 9 of the application wherein the defendants had admitted the aforesaid e-mail account. Lastly, it was submitted that the defense taken by the defendants in the present application was an afterthought and ought to be disbelieved.
Learned counsel for the defendants submitted that the dasti service shown to be effected ought not to be relied upon as the service was sought to be affected at an address where the defendants were not residing and also because the summons along with a copy of the plaint and the documents ought not to have been left at the gate of the suit property but rather affixed. Learned counsel for the defendants submitted that the defendants’ not residing at the suit property, where the service was sought to be effected, was a ‘sufficient cause’ under Order XXXVII Rule 3(7) CPC and thus prayed that the application be allowed.
The learned counsel for the defendants had relied on the decisions in Media Coverage Pvt. Ltd. v. Harish Nagewala & Ors., Kulvinder Singh & Another v. State Bank of India, Amitav Chaudhuri v. National Research Development Corporation, and Dev Bhushan v. Pradeep Kumar reported as 2017 (166) DRJ 204.
The court observed that the defendants had placed on record the duly executed copies of the lease deeds. Although no lease deed was placed on record for the period after 01.04.2020 it was categorically stated that the defendants continued to reside at the aforesaid property. The present application was filed within limitation and was also supported by the affidavit of defendant No.2 mentioning the current residential address as that of the Chhatarpur property.
The court held that the present application be allowed and the order dated 31.07.2020 whereby the defendants were presumed to be served by dasti service be recalled.
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