Satrupa Aggarwal v. Nath (Huf) & Ors

V.B.GUPTA, J. bhatti

* HIGH COURT OF DELHI : NEW DELHI FAO No.448 of 2001 % Judgment reserved on:,21st July, 2009 Judgment delivered on: 7th August, 2009 Smt. Satrupa Aggarwal R/o 3/90, Roop Bhawan Nehru Street, Vishwas Nagar, Shahdara, Delhi ….Appellant Through: Ms. Saahila Lamba. Versus 1. Sh. Nath (HUF) Through is Karta Shri Sri Nath R/o 36, Hanuman Road, New Delhi. 2. Sh. Sri Nath S/o Late Krishan lal R/o 36, Hanuman Road, New Delhi. 3. Sh. Prem Chander Soni R/o 38/2, East Patel Nagar, New Delhi 4. Sh. Brahm Dev Soni, R/o F73/2, Kirti Nagar, New Delhi. 5. Ms. Mini Kher W/o Rajesh Kher R/o 633, New Rajinder Nagar, New Delhi. 6. Ms. Niti Anand @ Niti Gupta W/o Sh. N. L. Anand, R/o R-633, New Rajinder Nagar, New Delhi. 7. Sh. Narinder Lal Anand S/o Late N. R. Anand. R/o R-633, New Rajinder Nagar, New Delhi. 8. Smt. Kamlesh Anand W/o Sh. Narinder Lal Anand, R/o R-633, New Rajinder Nagar, New Delhi. 9. Sh. Asit Chiman Lal Mehta R/o E-82, Kirti Nagar, New Delhi. 10. Dr. (Mrs.) Chanda Seth, R/o B-2/11, Vasant Vihar, New Delhi. 11. Sh. Gurucharan Singh Chalwal, R/o J-6/102, Rajinder Nagar, New Delhi. 12. Sh. Ravinder Singh Chawla R/o J-6/102, Rajinder Nagar, New Delhi. 13. Master Aseem Goel Through his father and natural Guardian. R/o 6, New Cloth Market, Rajinder Nagar, Bhatinda …Respondents Through: Nemo Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present appeal has been filed under Order 43 Rule (1) read with Section 104 and 151 of Code of Civil Procedure (for short as "Code"), against order dated 2nd June, 2001, passed by Additional District Judge, Delhi, vide which applications filed by appellant under Order IX Rule 13 and order XXII Rule 10, of the Code, were dismissed. 2. Brief facts are that, on 19th January, 1989, respondent nos. 1 and 2 herein, filed a suit for declaration and perpetual injunction against M/s D.K.G. Finance and Chit Fund Private Ltd. (for short as "M/s D.K.G.") 3. Case of respondents before trial court was that, they had purchased property no. 36, Hanuman, Road, New Delhi, vide registered sale deed dated 17th December, 1963. Since that date, they had been using and enjoying the space of land and common road (pathway) to reach Hanuman lane, without any interruption. 4. In February, 1988, M/s D.K.G., blocked three feet wide passage running along with back side of the wall of respondents" house, which damaged their property and also effected their right of easement. 5. M/s D.K.G. were duly served for 18th October, 1989 and their counsel put in its appearance, when the case was pending before this Court. Subsequently, the case was transferred to District Judge, who assigned it to Additional District Judge. That court issued notice to M/s D.K.G. as well as its counsel. Service upon M/s D.K.G. was effected through pasting, while its counsel remained unserved. Vide order dated 14th September, 1994, M/s D.K.G was proceeded ex-parte. 6. On 10th September, 1996, it was observed by the trial court that M/s D.K.G, could not be proceeded ex-parte, since, they had been served by way of pasting at G-56, Green Park, New Delhi, whereas, in written statement it is stated that M/s D.K.G. no longer resides at the address given in the plaint. The address filed by M/s D.K.G is 42- B, Hanuman Lane, New Delhi. Hence, court notice was ordered to be issued at 42-B, Hanuman Lane, New Delhi for 29.11.1996. 7. On 29.11.1996, court notice was not received back, as such, fresh court notice was ordered to be issued for 30th January, 1997. On 30th January, 1997, trial court passed the following order: " 30.1.1997 Present: Counsel for plaintiff. Notice sent to defendant received back with the report that presently no such firm exists at the given address. Similarly, the report was on the notice sent for the date 29th of Sept. 1996. Deft. had already been proceeded ex-