Holding

The Supreme Court dismissed the Special Leave Petitions, holding that the matter does not warrant interference under Article 136 and leaving open the question of the intra‑court appeal's maintainability.

Summary

The Ashok Nagar Welfare Association filed suits under Section 6 of the Specific Relief Act seeking possession of land allegedly occupied unlawfully by the respondents. A Single Judge of the Delhi High Court passed ex‑parte decrees on the basis that summons were served, although the summons were later found not to have been properly served. The respondents appealed, and the Division Bench set aside the ex‑parte decrees, ordering a fresh trial after concluding that the service of summons violated CPC Order 5 Rules 15 and 18. The petitioners then filed Special Leave Petitions before the Supreme Court, contending that the Division Bench had no jurisdiction to entertain the appeal because Section 6(3) of the Specific Relief Act bars intra‑court appeals, and that the Supreme Court should intervene under Article 136. The Supreme Court held that the case did not merit interference under Article 136, noted that the question of maintainability of the intra‑court appeal remains open, and dismissed the SLPs. No view was expressed on the merits of the underlying possession suits.

Issues considered

Whether the Division Bench of the Delhi High Court could entertain an appeal under Section 10 of the Delhi High Court Act despite the bar in Section 6(3) of the Specific Relief Act.
Whether the Supreme Court should grant special leave under Article 136 to interfere with the Division Bench's order setting aside the ex‑parte decrees.
Whether the ex‑parte decrees obtained without proper service of summons should be set aside.
Interpretation of Section 6(3) of the Specific Relief Act with respect to intra‑court appeals.

Legislation cited

Code of Civil Procedure, 1908s. Order 5 Rule 15, s. Order 5 Rule 18, s. Order 9 Rule 13
Constitution of Indias. Article 136
Delhi High Court Act, 1966s. 10
Specific Relief Act, 1963s. 6(3)

Subjects

Specific Relief ActSection 6(3)Intra‑court appealEx‑parte decreeService of summonsArticle 136Special leaveCivil ProcedureAbuse of processRestoration of possession

Judgment

A ASHOK NAGAR WELFARE ASSOCIATION AND ANR.
v.
R.K. SHARMA AND ORS.
I.._
DECEMBER 14, 2001

B [D.P. MOHAPATRA AND P. VENKATARAMA REDD!, JJ.]

Code of Civil Procedure, 1908-0rder 5, Rules 15 and 18-Suit for
restoration of possession-Summons not served on defendants-Single Judge
...
of High Court ordering ex-parte decree-On appeal, Division Bench of High
C Court setting aside the ex-parte decree and ordering fresh trial on merits
holding that summons were not served on defendants-Held, justified.

Specific Relief Act 1963--Section 6(3)-Delhi High Court Act, 1966-
Section 10--Whether in view of bar enacted in Section 6(3) an intra court
appeal under Section JO of Delhi High Court would be maintainable-Ques-
D tion le.ft open.
r
Constitution of India, 1950-Artic/e 136-Scope of-Held, confers a
discretionary power on Supreme Court to inte~fere in suitable cases to advance
the cause of justice-Does not con.fer a right of appeal on any party.

E Plaintiff-petitioners instituted suits under Section 6 of the Specific
Relief Act, 1963 against defendant-respondents for unauthorisedly occu-
pying the suit property by forcibly dispossessing the plaintiffs. Single
Judge of the High Court decreed the suits ex-parte. Defendant-respondents
filed appeals before the Division Bench of the High Court alleging that no
p notice was served on them and were not aware of the institution of suits.
Division Bench of the High Court set aside the ex-parte decree passed by
the Single Judge and ordered fresh trial of the suits on merits holding that
summons were not served on the defendants and there was a clear viola-
tion of the mandatory provisions of law in regard to service. Hence the
present SLPs by the plaintiffs.
G
On behalf of plaintiff-petitioners it was contended that no intra-
court appeal lies by virtue of the bar enacted in Section 6(3) of the Specific
Relief Act and that the provision in Section 10 of the Delhi High Court Act
providing for appeal against the judgment of a Single Judge to a Division
H Bench will be of no avail to assume jurisdiction to entertain the appeal in

• 662
ASHOK NAGAR WELFARE ASSOCIATION v. R.K. SHARMA 663
the face of the bar contained in Section 6(3). A
Dismissing the SLPs, the Court

HELD : 1.1. In view of the peculiar facts and circumstances of the
case, the impugned order of the Division Bench of the High Court does not
require interference under Article 136 of the Constitution of India. B
[671-B; 670-H]

1.2. Article 136 of the Constitution does not confer a right of appeal
on any party, but it confers discretionary power on this Court to interfere
in suitable cases. The bar under Article 136 is potential but not compulsive
and is undoubtedly meant to advance the cause of justice. The instant case c
is not a fit case for interference under Article 136 even if it is presumed
that appeal under Section 10 of the Delhi High Court Act was not main-
tainable. [669-H; 670-A; 669-G]

2.1. The findings of the High Court reveal a pathetic state of affairs
D
and bring to focus the factum of abuse of the process of Court by manipu-
lating the records to show due service while there was none. Elementary
care was not exercised by the officer concerned in checking up whether the
summons were duly served and whether tbere was a case for effecting
substituted service and whether mandatory provisions as to the service of
summons were complied with. The entire picture was not placed before the E
Court and the Court readily accepted the report of the Deputy Registrar
and proceeded on the basis that service was complete and the defendants
failed to respond to the summons. [668-E-F]

2.2. What the High Court has done is to invalidate the ex-parte
decrees which were obtained by questionable means fitting into descrip-
F
... tion of abuse of the process of the Court. If such decrees were allowed to
remain, it would have resulted in miscarriage of justice. [670-G]

-. 3. The question whether the Division Bench of High Court could
entertain the appeal under Section 10 of the Delhi High Court Act despite
the bar under Section 6(3) of the Specific Relief Act is left open. [670-F]
G

Pritam Singh v. The State, [1950] SCR 453, followed.

State of Bombay v. Rusy Mistry, AIR (1960) SC 391; Taherakhatoon ID)
by I.Rs. v. Salambin Mohammad, AIR (1999) SC 1104 and Vanita M. Khanolkar H
664 SUPREME COURT REPORTS (2001] SUPP. 5 S.C.R.
A v. Pragna M. Pai and Ors., AIR (1998) SC 424, relied on.
CIVIL APPEALLATE JURISDICTION : Special Leave Petition (C) No.
4635 of 200 I.

From the Judgment and Order dated 11.1.2001 of .the Delhi High Court
B in R.F.A. (O.S.) No. 32 of 2000.

WITH

Special Leave Petition (C) No. 4657 of 2001.

From the Judgment and Order dated 11.1.2001 of the Delhi High Court
c in R.F.A. (0.S.) No. 35 of 2000.

M.S. Ganesh, R. Ayyam Perumal and K.S. Kashyap, for the Petitioners

R. Venkataramani, L. Nageswara Rao, P.B. Suresh, Vipin Nair for
Mis Temple Law Firm for the Respondents.
D
The Judgment of the Court was delivered by

P. VENKA TARAMA RED DI, J. After notice the SLPs have been
heard at length.

E The common judgment of the Division Bench of the Delhi High Court
in RFA (OS) No. 32/2000 and RFA (OS) No. 35/2000 is being assailed in these
appeals by the plaintiff who instituted two suits Nos. 544 of 1991 and 597 of
199 l in the High Court. The first suit was filed against 48 defendants and the
other suit against 52 defendants who were alleged to be unauthorised occupants
F of plots/houses located in Khasra No. 393/264 situated in Ashok Na,•ar (Chilla
Village). Inter alia it was alleged in the plaint that the members of the Asso-
ciation (some of whom are the defendants) jointly and severally agreed to
relinquish their respective rights in favour of the first plaintiff and further
empowered the second plaintiff to institute requisite legal proceedings in aider
to safeguard the land in dispute. It is also alleged that the defendants were
j-
G inducted into possession unauthorisedly by certain persons named in the plaint
who were said to be the predecessors in title and therefore the defendants were
trespassers of the disputed land. It is then alleged that the defendants "forcibly
dispossessed the plaintiff-Association from its constructive possession". The
suits were purportedly filed .under Section 6 of the Specific Relief Act and
H
ASHOKNAGAR WELFAREASSOCIATIONv. R.K. SHARMA [REDD!,!.] 665
decree for possession/restoration of possession was sought for. A

It is not necessary to deal with the history of the litigation pertaining to
the suit land or the other details turning on the merits of the suits. Suffice it
· to notice that service on the defendants was treated to be complete and the
Court directed by an order dated 14.5.1992 that the defendants be proceeded
against ex parte. Affidavit evidence was taken on record. Both the suits were B
decreed on the finding that the defendants had illegally dispossessed the plain-
tiffs from the suit property and they were in the position of trespassers. Such
ex parte judgment and decree was passed on 6.8.1997 in Suit No. 597of 1991
and on 27.1.1997 in Suit No. 544 of 1991 by a learned Single Judge in exercise
of original jurisdiction. When defendants were sought to be dispossessed on c
the strength of the ex parte decrees, appeals were filed on the allegation that
the appellants/defendants were not aware of the suits and they came to know
for the first time of the decrees passed in the suits on 8.4.2000 when the police
officials came to inspect the area in order to enforce the court warrants.
Petitions for condonation of delay in filing the appeal were also filed. '!he
Division Bench of the High Court thoroughly examined the record to ascertain D
whether the summons were factually served or deemed to have been served in
accordance with law and having accepted the case of the defendants, set aside
the ex parte judgments and decrees passed by the learned Single Judge and
ordered fresh trial of the suits on merits in accordance with law. The learned
Judges found sufficient ground to condone the delay. The concluding part of E
the Judgment reads as under :-

"The appellants, who have put in appearance and who are defendants
in the suit will now be deemed to have been duly served. They will be
supplied by the plaintiffs with copies of the plaint and other docu-
ments, as are required to be served on them on or before the day when
F
the parties will appear before learned Single Judge. Within a period of
six weeks thereafter the said defendants will file their written state-
ments. Steps will also be taken by the plaintiffs thereafter to effect due
service on the remaining defendants."
... Adverting to the record in Suit No. 59Tof 1991, the High Court noticed
G

inter a/ia that the acknowledgment-due cards were not filed despite a requi-
sition in this behalf; summons were therefore not sent through registered post,
but were sent through ordinary process. Even without verifying whether the
summons were served to the unserved defendants, the Deputy Registrar di-
H
rected the suit to be posted on l l. l l .1991, on the insistence of the plaintiff. Al
666 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A that stage, application for substituted service for effecting service on unserved
defendants through publication in the newspaper was moved. The Division
Bench then commented :-

"The proceedings, which had taken place till that date thus would
reveal that the summons, which had been issued to the defendants
B pursuant to the order dated 4.2.1991 for 10.4.1991 had not been
received back in the Registry of Court. The Court was not aware
whether any or genuine effort had or had not been made to effect
service on the so-called unserved defendants. There was no reason
available to the Court till that date that why the unserved defendants
c could not be served personally with the summons. Though the suit had
come up on three different dates, namely, on 10.4.1991, 23.9.1991 and
11.11.1991, yet no orders were obtained by the plaintiff for fresh
summons to the, unserved defendants. Straight- away two separate
applications aforementioned under Order 5 Rule 20 of the Code were
filed.
D
The first application (I.A. 12267/91) averred that some of the
defendants had not been served till date despite repeated summons
issued to them. As such, it is not possible to serve the unserved
defendants through ordinary process. On face of it the averrnents made
in the application were false in as much as the application stated
E
'despite repeated summons issued to them'. Neither the summons,
which had been issued had been received back nor any effort was made
by the plaintiff to obtain fresh summons. Likewise the averrnents made
in the second application were also false, which also alleged that
repeated summons had been issued to the unserved defendants. On
F these sketchy applications, the Deputy Registrar, who is invested with
powers of the Court, proceeded to pass an order recording his satis-
faction that it was not possible to serve the unserved defendants in
.
ordinary course. Accordingly, he directed that the said defendants be

-
served by means of proclamation in newspaper, namely, 'The States-
G man'.
I
From what material on record or otherwise the Deputy Registrar
was satisfied with is anybody's guess. Nothing is reflected in the order.
Neither the contents of the application nor the previous office reports
support such satisfaction. Contents of the application, as noticed by us,
H on the face of it were false. Office reports also nowhere had stated
ASHOK NAGAR WELFARE ASSOCIATION v. R.K. SHARMA [REDD~ J.] 667
anything from which it could be inferred that it was not possible to A
serve the unserved defendants in the ordinary course. It was incumbent
for the Deputy Registrar to have at least looked into the provisions of
law before directing substituted service, which in terms of Rule 20 of
Order 5 could be ordered only on satisfaction that there was reason to
believe that the defendant was keeping out of the way for the purpose
B
of avoiding service or that for any other reason the summons cannot
be served in the ordinary way. Neither any explanation of the process
server was sought that why he had not returned the summons, which
had been sent for service, nor any report on any of the summons was
available to the Court since as per the office reports as reflected in the
orders dated 10.4.1991, 23.9.1991 and 19.12.1991, summons which c
had been ordered to be issued pursuant to the order dated 4.2.1991
were still awaited. Thus, even the order for effecting substituted serv-
ice by publication on the unserved defendants is bad in law."

The High Court then specifically referred to the endorsements of service
on certain summons to demonstrate how the summons were served on uncon- D
nected persons.

Adverting to the record in Suit No. 544 of 1991 wherein also the sum-
mons were not sent by registered post, the High Court remarked :-

"Looking at the record of Suit No.544of1991and571of1991 it thus E
appears that 89 summons are purported to have been served by the said
Tara Chand, Process Server on 30.3.1991 and the reports on the
summons also appears to have been prepared by him on the same day.
Instead of serving the summons on the person named therein, he
served some unknown persons without taking the trouble of even F
mentioning their identity and without getting these persons duly iden-
tified. He could have even stated on the summons that the persons to
whom summons were delivered were personally known to him. It was
not so mentioned. Had he been asked to appear in Court definitely he
would have stated that personally he was not acquainted with the said
G
defendants.

There are some of the reports on the summons, which have been
highlighted by us only to show the manner in which summons are
purported to have been duly served by the ·process-server. The same
were tendered to persons other than the one to whom the same were H
668 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A addressed. Another important feature, which we have noticed in both
the suits is the manner in which summons were addressed to the
defendants. Address of defendants as shown on summons in suit
No.544/91 has been noticed by us above. For all defendants in suit No.
597 of 1991, the summons were addressed as follows :-
B 'Unauthorised occupant of plots/house Nos. 65 to 98, out ofkhasra
No. 393/264 in Adarsh Nagar of village Chilla Saroda Bangar,
Delhi - 110091."

The High Court then discussed as to how the mandatory provisions of
CPC in regard to service of summons, viz. Order 5 Rule 18, Order 5 Ruic 15
c
etc. were not complied with. The High Court concluded:-

"As such we have no hesitation in concluding that the reports on the
summons are either fake or purposely made to give a colour of due
service. Summons were not served at all. These were not handed over
D to the defendants named therein, which prevented the defendants from
appearing in Court. Not only there is violation of the provisions of law,
but the provisions have been defied with impunity."

The above findings/observations of the High Court reveal a pathetic state
of affairs and bring to focus the factum of abuse of the process of the Court
E by manipulating the records to show due service while there was none. Elemen-
tary care was not exercised by the concerned officer of the court in checking
up whether the summons were duly served and whether there was a case for
effecting substituted service and whether mandatory provisions as to the serv-
ice of summons were complied with. The entire picture was not placed before
F the Court and the Court readily accepted the report of the Deputy Registrar and
proceeded on the basis that service was complete and the defendants failed to
respond to the summons.

It is sought to be contended by the learned counsel for the appellants,
on the basis of the proceedings of the Dy. Registrar recorded on 10.4.1991, that
G in suit No. 597 of 1991 most of the defendants were present in person and they
sought time to file written statement. The names of the defendants said to be
present are found recorded on the order sheet dated 10.4.1991. It is noted in
the order that the summons issued lo the defendants by ordinary process were
awaited, but the said defendants were present in person. Nothing is recorded
H as to how the Deputy Registrar was able lo identify them as the defendants
ASHOK NAGAR WELFARE ASSOCIATION v. R.K. SHARMA [REDD!, I.] 669
concerned. This is what the High Court very rightly commented. Obviously, A
the factum of service of summons on them was not checked up by the officer
of the Court, more so when their identity was not known to the officer.

We arc, therefore, satisfied that the judgment of the Division Bench of
the High Court setting aside the ex parte decree is correct, proper and just.
B
However, faced with the above adverse findings of the High Court which
are insurmountable, the appellant's counsel concentrated on the point that no
intra-court appeal lies by virtue of the bar enacted in Section 6(3) of the
Specific Relief Act. It is contended that the provision in Section l 0 of the Delhi
High Court Act providing for appeal against the judgment of a Single Judge
to a Division Bench will be of no avail to assume jurisdiction to entertain the
c
appeal in the face of the bar contained in Section 6(3). This very contention
was raised before the High Court. The learned Judges relying on the decision
of this Court in Vanita M. Khano/km· v. Pragna M. Pai and Ors., AIR (1998)
SC 424 held that the prohibition contained in sub-section (3) of Section 6 of
Specific Relief Act will not come in the way of the appellant in challenging D
the judgment and decree of a Single Judge by way of a Letters Patent Appeal.
Learned counsel for the appellant put in the best of his endeavour to distinguish
that judgment and also to question the correctness of that judgment on the
ground that it was decided 'per incuriam', without regard to the dicta laid down
in larger Bench decisions. It is submitted with considerable force that the
E
specific bar enacted in Section 6 (3) of the Specific Relief Act cannot be got
over by invoking the provision relating to intra-court appeals. It is pointed out
that if the view taken by this Court in Vanitas case is given effect to, the bar
under Section 6(3) will operate in all cases where the High Court has no
original jurisdiction to try the suits, whereas it does not come into play if the
High Court concerned does not have such jurisdiction. This anomalous position F
is another reason, according to the learned counsel, to conclude that the em-
bargo against the entertainment of appeal incorporated in sub-section (3) of
Section 6 of Specific Relief Act is absolute and is not effaced by the provisions
of the Letters Patent or the relevant High Court Act. These contentions arc not
without substance. However, we do not consider it necessary to refer the matter G
to a larger Bench as we are of the view that this is not a fit case for interference
under Article 136 of the Constitution even if we proceed on the basis that the
appeal under Section 10 of the Delhi High Court Act was not maintainable.

On a conspectus of the tell-tale facts of the case and the considerations
germane to the exercise of jurisdiction under Article 136, we refrain from H
670 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A exercising the jurisdiction and grant leave to appeal. It is well settled that
Article 136 does not confer a right of appeal on any party, but it confers a
discretionary power on the Supreme Court to interfere in suitable cases vide
State of Bombay v. Rusy Mistry, AIR (1960) SC 391. The bar under Article
136 is potential but not compulsive and is undoubtedly meant to advance the
cause of justice. In Taherakhatoon (D) by LRs. v. Salambin Moha11imad, AIR
B
(1999) SC 1104, it was pointed out that·even in cases where special leave is
granted, the discretionary power vested in the Court continues to remain with
the Court even at the stage when the appeal comes up for hearing. In that case,
the Court having declared the law that the High Court while dealing with the
second appeal erred in not framing a substantial question of law, declined to
c interfere with the impugned judgment in exercise of discretionary power under
Article 136. Half a century back, a Constitution Bench of this Court in Pritam
Singh v. The State, [1950] SCR 453 made pertinent observations on the scope
and nature of the power under Article 136. It was observed that the jurisdiction
under Article 136 "is to be exercised sparingly and in exceptional cases only,
and as far as possible, a more or less uniform standard should be adopted in
D
granting special leave in the wide range of matters which can come up before
it under this Article". The Court then observed "the only uniform standard
which in our opinion can be ]aid down in the circumstances is that Court should
grant special leave to appeal in those cases where special circumstances are
shown to exist." The Constitution Bench further laid down "Generally speak-
E ing, this Court will not grant special leave, unless it is shown that exceptional
and special circumstances exist, that substantial and grave injusitce has been
done and that the case in question present features of sufficient gravity to
warrant a review of the decision appealed against."

F Viewed in this light, we do not think that special leave should be granted
and arguments shall be allowed to be advanced on the question whether the
Division Bench or the High Court could entertain the appeal under Section 10
of the Delhi High Court Act despite the bar under Section 6(3) of the Specific
Relief Act. The High Court, by the impugned order, followed the judgment of
this Court in Vanita's case (supra) which prima.facie supports its view. That
G apart, it is pertinent to note that in any case, the High Court, in exercise of
another jurisdiction viz. original jurisdiction could have set right the illegality
and restored the suits to its file. What the High Court has done is to invalidate
the ex parte decrees which were obtained by questionable means fitting into
the description of abuse of the process of the court. If such decrees were
H allowed to remain, it would have resulted in miscarriage of justice. We cannot
ASHOK NAGAR WELFARE ASSOCIATION v. R.K. SHARMA [REDD!,!.] 671
shut our eyes to the ground realities and the factual events highlighted by the A
High Court in deciding the question whether we should exercise our discretion-
ary power under Article 136. Incidentally, it may be mentioned that according
to the learned counsel for the respondent, the reason for not filing the appli-
cation for restoration under Rule 13 of Order 9 was the bona fide impression
-may be a mistaken impression, that the learned Single Judge of the High Court
B
who allowed the execution of the decree to go on will not be able to interfere
in the matter. Be that as it may, we are not persuaded in the peculiar facts and
circumstances of the case to grant leave as we feel that affording an opportunity
to the defendants to contest the suits on merits is well justified and will have
the effect of averting serious injustice. We shall, however, be not understood
to have expressed any view on the merits of the suits. c
In the result the Special Leave Petitions stand dismissed. There shall be
no order as to costs.

Petitions dismissed.