Dismissed

Ghanshyam Dass v. Kamal Kishore and Anr.

Punjab & Haryana HC7 Jul 2011CR/3363/2010

Case brief

AI extract

What is this about?

Single Judge HC Punjab‑Haryana quashed a revision petition challenging trial Court order setting aside ex parte proceedings; held no limitation under Order IX Rule 7 CPC and found no apparent material irregularity or grave injustice to warrant interference.

What did the court decide?

Revision petition dismissed as devoid of merit; impugned order refusing to interfere stays intact.

Ghanshyam Dass Vs Kamal Kishore and Anr. — Specific Performance | Punjab & Haryana HC (2011)

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Civil Revision No.3363 of 2010 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Civil Revision No.3363 of 2010 (O&M) Date of Decision: July 7, 2011

Ghanshyam Dass

.....Petitioner

Kamal Kishore and another

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.....Respondents

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CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA

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Present: Mr.Sumeet Goel, Advocate for the petitioner.

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Mr.R.M.Singh, Advocate for respondent.

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.....

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RAM CHAND GUPTA, J.

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The present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside order dated 19.4.2011 passed by learned Civil Judge, Senior Division, Gurgaon, vide which application filed by respondents-defendants under Order IX Rule 7 of the Code of Civil Procedure (hereinafter to be referred as the `Code') for setting aside ex parte proceedings was allowed.

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I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.

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Facts relevant for the decision of present revision petition are that petitioner-plaintiff filed a suit for specific performance of agreement to sell dated 30.6.2006 regarding property in dispute. Notice of the suit was given to respondents-defendants for 16.1.2007. However, as none appeared

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Civil Revision No.3363 of 2010 (O&M)

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for respondents-defendants, they were proceeded ex parte. Later on application was filed on behalf of the respondents-defendants for setting aside ex parte proceedings, which was allowed by learned trial Court vide impugned order against which the present revision petition has been filed.

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It has been contended by learned counsel for the petitioner that the application was moved at a much belated stage after ex parte evidence of the petitioner was already recorded and hence, it is contended that the application is not maintainable and no sufficient cause is made out for setting aside ex parte proceedings.

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On the other hand it has been contended by learned counsel for the respondents that summons were issued to them without copy of plaint and however, after receipt of summons, they contacted petitioner-plaintiff, who assured withdrawal of the suit and, however, lateron respondentsdefendants came to know that the suit was not withdrawn and hence, the present application was filed.

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It has also been contended that some forgery has also been committed by petitioner in the impugned agreement and hence, learned trial Court has rightly allowed the application of respondents-defendants to join the proceedings and contest the suit.

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So far as the question of limitation for filing an application under Order IX Rule 7 of the Code is concerned, the same is not res integra. It has been held by this Court in various judgments that no period of limitation is prescribed for filing an application for setting aside ex parte proceedings under Order IX Rule 7 of the Code. In Trilok Singh v. Smt.Ganga Devi , 1983(1) RLR 688, it was observed that period of 30 days under Article 123 of the Limitation Act, 1963, applies only to an ex parte

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Civil Revision No.3363 of 2010 (O&M)

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decree and not to ex parte proceedings and that there was no limitation provided for setting aside the ex parte proceedings, which depends upon the discretion of the Court, on the peculiar facts of each case. The said observation was reiterated by this Court and followed in Siri Chand v. Ram Dhan and another , 1989 (1) Rev.L.R 481.

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In another judgment rendered in Delhi Development Authority v. Shanti Devi, AIR 1982 Delhi 159, it was observed that there was no rule that an application under Order IX Rule 7 of the Code is to be filed within 30 days from the date of order of proceeding ex parte. Similar view was taken in Palani Nathan v. Devanai Ammal , (1989) 2 Mad L.J. 259.

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This Court in a later judgment rendered in Kuldip Kaur v. Gurdeep Singh , 1994(1) Civil Court Cases 0001, after referring to all the previous judgments, also held that no limitation is provided for setting aside ex parte proceedings under Order IX Rule 7 of the Code.

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Hence, there is no force in the argument of learned counsel for the petitioner that as the application is filed at a much belated stage, the same is not maintainable.

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So far as the fact as to whether sufficient grounds exist for setting aside ex parte proceedings is concerned, it may be mentioned that under Order IX Rule 7 of the Code, applicant is to show only good cause for his failure to appear in the Court on the date fixed whereas under Order IX Rule 13 of the Code for setting aside ex parte decree, sufficient cause has to be shown.

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In the present case, respondents-defendants have come to the Court with clean hands. They have taken the plea that they have received

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Civil Revision No.3363 of 2010 (O&M)

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summons, however, the same were received without copy of plaint. They have further taken the plea that after receiving summons, they contacted the petitioner-plaintiff, who assured them to withdraw the suit and to get the matter settled amicably and, however, lateron they came to know that the suit was not withdrawn and rather he committed some forgery in the original agreement itself and hence, they filed application for setting aside ex parte proceedings.

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Learned trial Court has in its discretion accepted the plea of respondents-defendants and ordered for setting aside the ex parte proceedings against them and allowed them to join the proceedings subject to payment of Rs.2500/- as cost.

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In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

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Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:-

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“Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross

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failure of justice has occasioned thereby.”

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Hence, the present revision petition is, hereby, dismissed being

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devoid of any merit.

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7.7.2011 (Ram Chand Gupta) meenu Judge