Shri O.P. Goel v. Shri Tapan Kumar Das

RAJIV SAHAI ENDLAW, J OCTOBER 06, 2015 "gsr"/ "pp" (corrected & released on 25th December, 2015)

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th October, 2015 + RFA No. 303/2009 SHRI O.P. GOEL ..... Appellant Through: Ms. K.A. Nagamani, Advs. Versus SHRI TAPAN KUMAR DAS ..... Respondent Through: Mr. K. Sunil & Mr. Aviral Mittal & Mr. Navdeep Jain, Advs. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 16th September, 2008 of the Court of Mrs. Sarita Birbal, Additional District Judge (ADJ) of dismissal of Suit No.15/2008 (instituted on 31st May, 1997) of the appellant for recovery of Rs.6,40,000/- by way of damages for malicious prosecution from the five defendants viz. State of Bihar, Tapan Kumar Dass, Vijay Kumar Jha, Vijay Nandan Dubey and Director General, All India Radio (AIR). 2. The memorandum of parties of this appeal shows only one respondent viz. Tapan Kumar Das. 3. On enquiry, the counsel for the appellant informs, (i) that the suit was earlier decreed on 6th April, 2004 awarding damages / compensation of Rs.3,00,000/- along with interest at 9% per annum from the date of filing of the suit and till realization; (ii) 75% of the said decretal amount was directed to be paid by the defendant No.3 Vijay Kumar Jha and the rest of the decretal amount was ordered to be shared by the other defendants equally; (iii) the said decree in so far as against the sole respondent herein viz. Tapan Kumar Das was an ex parte decree; ;(vi) the respondent filed an application under Order IX Rule 13 of the CPC for setting aside of the said judgment and decree and which application was allowed vide order dated 21st April, 2006 and the ex parte judgment and decree was set aside only against the respondent Tapan Kumar Das. It is thereafter that the impugned judgment and decree was passed. It is on this basis that in this appeal, there is a sole respondent as the impugned judgment is confined to the respondent only. 4. On enquiry, the counsel for the appellant informs that execution of the judgment dated 6th April, 2004 against Vijay Kumar Jha from whom 75% of the decreetal amount is to be recovered is pending and the State of Bihar and the Director General AIR, each of whom were to pay 1/4th of the balance 25% of the decretal amount, have paid their respective share. 5. The counsel for the appellant has argued that the order dated 21st April, 2006 of the ADJ setting aside the ex parte judgment and decree dated 6th April, 2004 qua the respondent is bad and was obtained by the respondent by fraud. 6. The counsel for the respondent intervenes that the appellant had preferred a Civil Revision Petition before this Court against the order dated 21st April, 2006 setting aside ex parte against the respondent and the same was dismissed vide order dated 15th May, 2006. 7. The counsel for the appellant also agrees but contends that since the order dated 21st April, 2006 of the ADJ setting aside ex parte decree was a nullity, the appellant is entitled to challenge the same now also. On enquiry, whether at the time of dismissal of the Revision Petition preferred thereagainst, on 15th May, 2006, the said right was reserved or not, the counsel for the appellant states that the appellant did not have proper legal assistance at that time. 8. The counsel for the respondent again intervenes to state that the appellant is learnt to have gone to the Supreme Court also against the order dated 15th May, 2006 of this Court. 9. The counsel for the appellant states that though a Special Leave Petition was preferred but was never listed for hearing and thus the question of dismissal of the same did not arise. 10. In my view, once this Court in exercise of powers under Section 115 of the CPC has examined the order dated 21st April, 2006 of the learned ADJ, it is not open to me at this stage to again entertain a challenge thereto in this Regular First Appeal. I am in this jurisdiction not sitting in appeal over the order dated