Laldhari Mistri(Dead) Thr. Lrs. vs Vijay Kumar

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5780 OF 2008

LALDHARI MISTRI(DEAD) THR. LRS. & ANR. Appellant(s)

VERSUS

VIJAY KUMAR Respondent(s)

J U D G M E N T

R.F. NARIMAN, J.

1) 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.

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.

3) Fact is indeed stranger than fiction, as the unfolding of

the 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

Signature Not Verifiedhouse situated in Munger, District Bihar. One Hira Mistry, Digitally signed by R.NATARAJAN Date: 2017.07.18 15:52:52 IST Reason: father of the original appellant No.1 and grandfather of the

appellant No.2, was the owner of the said house, which was let

out to one Surendra Narayan Sinha. Eviction proceedings were 2

instituted by the said Hira Mistry against the said tenant in

which eviction was ordered on 21.12.1979; then reversed in

first appeal on 24.02.1986; and again reversed in second appeal

on 02.04.1992.

5) We have been informed at the Bar that a Special Leave

Petition has also been preferred from the second appellate

judgment and decree which has been dismissed. This is as far

as one set of proceedings is concerned.

6) At this point, the facts get a little curious. There is

alleged to be an agreement to sell between Hira Mistry, the

landlord and one Vijay Kumar on 17.02.1983 at a point when

eviction had already been ordered against the tenant. This

agreement to sell became the subject-matter of a specific

performance suit filed in the year 1986 which resulted in the

ex-parte decree aforesaid of 09.06.1987.

7) It is difficult to fault the trial Court and the

Appellate Court when they dismissed the application under Order

IX Rule 13. Both the grounds given cannot be said to be

perverse. However, the facts of the present case are such

that it has become necessary for us, in order to do complete

justice, to set aside the three orders against the appellant.

8) The first curious incident takes place when an advocate

Commissioner is sent to examine the tenanted premises. In a

suit filed on 12.07.1994 by Vijay Kumar in order to declare

that the eviction decree obtained is void, the advocate

Commissioner visited the premises, stated to be in possession

of the said Vijay Kumar since 1989. What he found there, 3

however, was the daughter of the tenant with no trace of the

said Vijay Kumar. Not only does he visit the premises on

04.10.1998, but the second visit on 21.10.1998 yields the same

result, in which the self-same finding is recorded. Quite

apart from this, in the proceedings under Order IX Rule 13, on

30.01.1999, the trial Court specifically ordered, as a last

chance, that Vijay Kumar 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 proceedings likewise recorded that though directed

to be physically present in Court, Vijay Kumar was not

physically present and, in fact, at no point of time was ever

physically present in any Court.

9) It seems to us, having regard to the facts afore-stated,

that Vijay Kumar is himself a doubtful entity. Even assuming

that a person called Vijay Kumar exists, 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 to stultify a

final decree of eviction obtained by the landlord of the

premises way-back in 1992.

10) Having regard to the peculiar facts and circumstances of

the case and in the interest of justice, we set aside the

orders dated 11.12.2001 passed by the trial Court, 29.05.2004 4

by the Appellate Court and the impugned order dated 31.08.2005

passed by the High Court, all of which result in our setting

aside the ex-parte decree dated 09.06.1987, and direct that

Suit No. 14 of 1986 be set down for hearing on merits.

11) Since the suit is pending for a long time before the

Sub-Judge, Munger, we direct that the said suit be heard and

disposed of within a period of one year from today.

12) The appeal is allowed in the aforesaid terms.

13) Status quo as to possession to continue till the suit is

decided finally.

14) We have received excellent assistance from Mr. Gaurav

Agrawal, learned counsel appearing for the appellants and Mr.

Samir Ali Khan, learned counsel appearing for the respondent,

who have acted in the highest traditions of the Bar, and who

were extremely fair both to their respective clients and to the

Court.

.......................... J.

(ROHINTON FALI NARIMAN)

.......................... J.

(SANJAY KISHAN KAUL) New Delhi;

July 13, 2017.