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Non-Reportable  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.4507 OF 2019  

(@ S.L.P.(C) No.35428 of 2017)  

ROBIN THAPA               …  APPELLANT(S)  

VERSUS  

ROHIT DORA                    …  RESPONDENT(S)  

J U D G M E N T  

K.M. JOSEPH, J.  

1. The appeal by Special Leave is directed against the Order passed  

by the High Court of Uttarakhand at Nainital allowing the Revision  

Petition filed by the respondent under Section 115 of The Code of Civil  

Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) and  

setting aside the Order passed by the Trial Court under Order 9 Rule  

13 of the Code by which the ex parte decree obtained by the  

respondent in this appeal, has been set aside.  

2. The respondent, who is hereafter referred to as the plaintiff, filed  

the Suit O.S. No. 490 of 2013 seeking specific relief and mandatory  

injunction. By Judgment dated 09.10.2014, Civil Judge Senior Division,  

Dehradun decreed the Suit.

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3. The petitioner, who is defendant in the Suit, filed an application  

dated 02.12.2015 supported by an application for condonation of delay.  

The respondent filed the objections, and as noticed, overruling the  

objections of the respondents, the Trial Court allowed the application  

filed by the petitioner under Order 9 Rule 13 of the Code, which has  

been set aside by the High Court.  

4. The learned Counsel for the petitioner would submit that the  

original summons was served on 17.12.2013 on the mother of the  

petitioner. The Trial Court itself issued further summons on 23.04.2014.  

On 02.07.2014, the petitioner filed an application. Thereafter, the Suit  

came to be transferred to another Court, and thereafter, without any  

notice to the petitioner, the Suit came to be decreed.  

5. Counsel for the appellant would submit that the property is the  

residential property. It is much more valuable than the amount shown  

in the agreement. The transaction was essentially a loan transaction  

and opportunity must be given to contest the matter on merits.  

6. Per contra, the learned Counsel for the decree holder would  

submit that ample opportunity was given to the appellant, and in spite  

of the same, he has not contested the matter. Appellant has another  

residential building. The building in question was let out on rent.  

7. Most importantly, the learned Counsel submits that after levying  

execution of the decree, the property has been conveyed to the  

respondent by the orders of the Court. In other words, sale deed has

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already been executed in her favour. It is respondent’s case that  

appellant was served notice by the executing court.  There is no scope  

for interfering with the matter by this Court.   

8. Ordinarily, a litigation is based on adjudication on the merits of  

the contentions of the parties. Litigation should not be terminated by  

default, either of the plaintiff or the defendant. The cause of justice does  

require that as far as possible, adjudication be done on merits.  

9.   The disputed agreement is dated 18.04.2012. Summons was  

issued and it was received but according to the appellant, by his  

mother. The Trial Court has apparently accepted the case of the  

appellant that the mother did not bring the receipt of the summons to  

the notice of the appellant and that it was sometime in June, 2014 that  

the appellant can be credited with knowledge of the Suit. The Order  

dated 02.07.2014 reads as follows:  

“On behalf of the plaintiff ex-parte evidence  

by way of affidavit (20A2) is filed.  

The ex-parte proceeding against the  

defendant is allowed.  

The application is submitted to engage an  

advocate by the defendant. However, the suit is  

declared ex-parte evidence, therefore, the same is  

rejected. Now the matter is fixed for ex-parte  

argument on dated 08.08.2014.”  

10.  Order further appears to reveal that the plaintiff was present in  

person. The plaintiff has filed his proof affidavit. It was decided to  

proceed against the appellant ex parte. There is, however, a reference

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to the application to engage an advocate by the appellant. The case  

stood posted for ex parte argument on 08.08.2014. As parties were not  

present on the said day, the case was posted to 15.09.2014. However,  

on 12.09.2014, the case stood transferred to another Court. No  

intimation was given under Rule 89A to the appellant.  

11.  The further case of the appellant is that he came to know from the  

plaintiff that the case was fixed for judgement on 17.11.2015. He has  

alleged that he contacted his counsel but he did not get a satisfactory  

reply. He also has a case that he appeared on 17.11.2015 in court, and  

then, he only came to know that judgement was rendered on  

09.10.2014. A new counsel was engaged on 26.11.2015. Thereafter, the  

application was filed.  

12. One fact stands out and that is, that the appellant came to be  

served notice of the execution proceedings through said messenger  

on 27.03.2015.  Thus, the case of the appellant that appellant came to  

know about the passing of the decree only on 17.11.2015, cannot be  

acted upon.  This is besides noticing that in execution of the decree,  

the sale deed has been executed in favour of the respondent and it is  

only thereafter that despite receipt of the notice dated 27.03.2015, the  

appellant has set up the case that he came to know of the passing of the  

decree only several months thereafter.

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13. The matter arises from a suit for specific performance.  It may be  

true that there is a case for the respondent that the appellant has  

actually let out the building on rent.  The appellant’s case is that this is  

the appellant’s residential house and the matter is a loan transaction.    

Specific relief is undoubtedly a discretionary relief.  Appellant has  

submitted that the appellant is prepared to deposit the entire amount  

spent by the respondent towards getting sale deed executed.  We  

would think that the interest of justice demands that subject to putting  

the appellant on terms, an opportunity should be given to the appellant  

to contest the case and the case must be directed to be disposed of  

within the time limit.  Accordingly, we allow the appeal and set aside  

the impugned order subject to the following conditions:  

(a) The appellant will deposit a sum of Rs.67,400/- (Rs.57,400/-  

towards stamp duty paid by the respondent + Rs.10,000/-  

towards registration expenses etc.) within a period of one  

month from today in the Execution Court.    

(b) The appellant will further deposit a sum of Rs.50,000/- as costs  

to be paid to the respondents.  This amount will also be  

deposited in the Execution Court within a period of one month  

from today.  

Upon depositing the aforesaid amounts, it will be open to the  

respondent to withdraw the same and the sale deed  will stand  

set aside.  The respondent can also withdraw the amount of

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Rs.92,000/- deposited by him towards balance sale  

consideration.  In case the amounts as aforesaid are not  

deposited within the stipulated period, the appeal will stand  

dismissed and the impugned order will stand confirmed.  

(c) We further direct that if the appellant complies with the  

conditions as aforesaid, the trial Court will take up the suit and  

dispose of the same as expeditiously as possible but at any  

rate within a period of six months from the date on which the  

respondent brings the fulfilment of the aforesaid conditions to  

the notice of the trial Court.  

…….......................J.  

                          (ASHOK BHUSHAN)  

...........................J.  

                        (K.M. JOSEPH)  

New Delhi,  

July 08,   2019.