Allowed

Chetan and Ors. v. Narain Singh

Punjab & Haryana HC15 Feb 2012CR/4160/2011

Case brief

AI extract

What is this about?

This civil revision petition allowed an ex parte judgment and decree in a property dispute appeal by defendants residing separately. The High Court held that service on one brother's wife was invalid despite all being brothers and remanded the case to the trial court to decide on merits after imposing heavy costs.

What did the court decide?

The ex parte judgment, decree, and order proceeding ex parte are set aside; the application under Order 9 Rule 13 CPC is allowed subject to payment of Rs. 50,000 as cost.

Chetan and Ors. Vs Narain Singh — Execution and Attachment | Punjab & Haryana HC (2012)

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CR No.4160 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CIVIL REVISION NO.4160 OF 2011 DATE OF DECISION: FABRUARY 15, 2012

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Shri Chetan & others

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.... Petitioners

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Versus

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Shri Narain Singh

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.... Respondent

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CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.

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PRESENT: Mr. Lokesh Sinhal, Advocate for the petitioners.

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Mr. K. B. Sharma, Advocate for respondent.

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L.N. MITTAL, J. (ORAL)

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Defendants No.1 and 3 to 6 and legal representatives of defendant No.2 have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 08.04.2010 (Annexure P-2) passed by learned Additional Civil Judge (Senior Division), Faridabad thereby dismissing application of defendants filed under Order 9 Rule 13 of the Code of Civil Procedure (in short, CPC) for setting aside ex parte judgment and decree dated 30.08.2006 passed in Civil Suit instituted by respondent-plaintiff Narayan Singh against the defendants, along with order dated 16.09.2005 whereby defendants were proceeded ex parte in the suit, and also assailing judgment dated 12.05.2011 Annexure P-3 passed by learned District Judge, Faridabad thereby dismissing appeal preferred by the defendants against order Annexure P-2 of the trial Court.

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Respondent-plaintiff instituted suit against petitioners No.1 to 5 and predecessor of petitioners No.6 to 8 alleging that Amar Singh father of all the

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CR No.4160 of 2011

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defendants agreed to sell the suit land to plaintiff vide agreement dated 14.10.2004 for Rs.3,62,500/- (Rupees three lacs sixty two thousand five hundred) and received Rs.3,12,500 (Rupees three lacs twelve thousand five hundred) as earnest money and executed agreement dated 14.10.2004 and possession of the suit land was also delivered to the plaintiff. On death of Amar Singh, defendants being his sons are his successors. The plaintiff sought specific performance of the aforesaid agreement along with permanent injunction restraining the defendants from dispossessing the plaintiff from the suit land and from alienating the same to anybody else.

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Notice of the suit was issued to defendants who are all brothers. Notice was allegedly received by Usha wife of Kuldeep defendant No.3 on behalf of the defendants. Taking it to be valid service on family member of the defendants, the defendants were proceeded ex parte on 16.09.2005 because none appeared for them. The suit was decreed vide ex parte judgment (Annexure P-1) and decree dated 30.08.2006.

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Defendants in their application moved under Order 9 Rule 13 CPC alleged that they were never served in the suit. False report was obtained by plaintiff in collusion with process server. Defendants learnt on 14.09.2006 of the passing of impugned judgment and decree when plaintiff threatened to dispossess the defendants from the suit land on the basis of ex parte judgment and decree dated 30.08.2006. Thereupon defendants contacted their counsel and learnt of the ex parte judgment and decree as well as order dated 16.09.2005 whereby they were proceeded ex parte in the suit. Report of service of summons on family member of defendants was false.

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Respondent-plaintiff contested the application and pleaded that defendants were duly served in the suit and they were also fully aware of the suit.

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CR No.4160 of 2011

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Averments made in the application were controverted. Various other pleas were also raised.

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Learned trial Court vide impugned order Annexure P-2 dismissed the application of defendants. Appeal preferred against the said order by the defendants has also been dismissed by learned District Judge vide impugned judgment Annexure P-3. Feeling aggrieved, defendants (including legal representatives of defendant No.2) have preferred the instant revision petition.

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I have heard counsel for the parties and perused the case file.

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Counsel for the petitioners contended that defendant No.2 Asha Ram (since deceased and represented by petitioners No.6 to 8) was residing in Delhi whereas the remaining defendants were residing in the village in district Faridabad but they were also residing separately from one another and, therefore, alleged service of summons of the suit on wife of defendant No.3 Kuldeep only, cannot be said to be service of summons on family member of the remaining defendants and, therefore, it was not valid service of the remaining defendants who, therefore, could not be proceeded ex parte on the basis of the said report. It was also contended that mere knowledge of the pendency of the suit without knowledge of date of hearing would not disentitle the defendants to seek setting aside of the ex parte judgment and decree by virtue of second proviso to Order 9 Rule 13 CPC. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Sushil Kumar Sabharwal

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versus Gurpreet Singh and others, AIR 2002 Supreme Court 2370 .

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On the other hand, counsel for plaintiff-respondent contended that defendants were keeping a track of the proceedings of the suit and filed the application within one month of the decision of the suit. It was pointed out that defendants or their counsel did not inspect the suit file before filing the

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application and, therefore, it is not explained as to how they learnt that they had been proceeded ex parte vide order dated 16.09.2005 and that suit had been decreed vide ex parte judgment and decree dated 30.08.2006. It was also contended that the defendants in their application did not plead that they were residing separately from one another and that defendant No.2 Asha Ram was residing in Delhi and, therefore, evidence in this regard being beyond pleadings cannot be looked into.

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I have carefully considered the rival contentions. Assuming that summons in the suit was served on Usha wife of Kuldeep defendant No.3, it cannot be said to be legal and valid service of summons on all the defendants within the purview of Order 5 Rule 15 CPC. It is correct that all the defendants are real brothers. However, it has come in evidence that Asha Ram defendant No.2 was residing in Delhi. He had his ration card there. He was also listed as voter there. Usha wife of Kuldeep defendant No.3 could have been said to be family member of all the defendants if they had been residing together. It was for the plaintiff to depict that it was valid service and that all the defendants were residing together and therefore, service of summons on wife of one of the defendants was sufficient service of summons on all the defendants. However, the defendants have depicted that defendant No.2 was residing in Delhi and other defendants are residing in the village having separate ration cards. So service of summons of the suit on wife of defendant No.3 only cannot be said to be valid service on all the defendants.

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Courts are also otherwise liberal in setting aside ex parte judgment and decree, may be on payment of cost, because a lis should be decided on merits and not by default. However, in the instant case, while setting aside the ex parte judgment and decree, defendants have to be burdened with heavy cost. Reason

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for the same is that the defendants immediately filed the application for setting aside ex parte judgment and decree after the same were passed, without even inspection of the suit file depicting that they might be keeping track of the suit and thus they have not come to the Court with absolute clean hands. In addition to it, version of the plaintiff is that he had paid Rs.3,12,500/- (Rupees three lacs twelve thousand five hundred) out of total consideration of Rs.3,62,500/(Rupees three lacs sixty two thousand five hundred) to defendants' father as earnest money through agreement dated 14.10.2004 although plaintiff as per his version is also enjoying possession of the suit land allegedly delivered to him under the agreement. The plaintiff also deposited balance sale consideration of Rs.50,000/- (Rupees fifty thousand) pursuant to impugned ex parte judgment and decree.

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Keeping in view all the circumstances I am of the considered opinion that ends of justice require that ex parte judgment and decree along with order dated 16.09.2005 whereby defendants were proceeded ex parte should be set aside on payment of heavy cost. Accordingly the instant revision petition is allowed. Impugned order Annexure P-2 passed by the trial Court and impugned judgment Annexure P-3 passed by the appellate Court are set aside. Application moved by defendants for setting aside ex parte judgment and decree dated 30.08.2006 along with order dated 16.09.2005 is allowed and the said ex parte judgment and decree dated 03.08.2006 and order dated 16.09.2005 are set aside, subject to payment of Rs.50,000/- (Rupees fifty thousand) as cost precedent.

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Parties are directed to appear before the trial Court on 14.03.2012.

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(L. N. MITTAL) JUDGE

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15.02.2012 'raj'

Chetan and Ors. v. Narain Singh

Case brief

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Chetan and Ors. v. Narain Singh

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