Allowed

Parkash Chand v. Bhushan Kumar and Others

Punjab & Haryana HC24 Sept 2013CR/1960/2012

Case brief

AI extract

What is this about?

In a revision petition filed under Article 227, the High Court allowed the petition and set aside the trial court's and appellate courts' orders. The ex parte proceedings against the petitioner were ordered due to perceived refusal of summons. The High Court directed the trial court to set aside these proceedings and allow the petitioner's application, subject to payment of costs.

What did the court decide?

Ex parte proceedings set aside; application filed by petitioner allowed; costs of 15,000/- imposed.

Parkash Chand Vs Bhushan Kumar and… — Civil Procedure and Limitation | Punjab & Haryana HC (2013)

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Civil Revision No. 1960 of 2012

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Civil Revision No. 1960 of 2012 Date of decision : September 24, 2013

Parkash Chand

....Petitioner

versus

Bhushan Kumar and others

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....Respondents

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Coram: Hon'ble Mr. Justice L.N. Mittal

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Present : Mr. Ashish Gupta, Advocate, for the petitioner Mr. Mohit Setia, Advocate, for respondent no. 1

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L.N. Mittal, J. (Oral)

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In this revision petition filed under Article 227 of the Constitution of India by defendant no. 2, challenge is to order dated 28.1.2010 Annexure P/4 and order dated 18.10.2010 Annexure P/7 passed by the trial court and judgment dated 3.2.2012 Annexure P/9 passed by the lower appellate court.

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On application filed by respondent no. 1-plaintiff in the suit instituted against respondent no. 2 as sole defendant, petitioner and respondent no. 3 were impleaded as defendants no. 2 and 3 to the suit vide

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Tiwana Dalbir Singh 2013.09.26 10:36 I attest to the accuracy and integrity of this document. High Court, Chandigarh

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Civil Revision No. 1960 of 2012

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order dated 5.11.2009 Annexure P/3 passed by the trial court. Defendant no. 2-petitioner was proceeded against ex-parte vide order dated 28.1.2010 Annexure P/4 on the ground that defendant no. 2 refused to receive summons by registered post and was deemed to be duly served. Defendant no. 2 moved application dated 11.8.2010 Annexure P/5 for setting aside exparte proceedings ordered against him vide order Annexure P/4 alleging that defendant no. 2 was not duly served and he never refused to accept summons.

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Plaintiff by filing reply Annexure P/6 opposed the application and controverted the averments made therein.

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Learned trial court vide order Annexure P/7 dismissed application Annexure P/5 filed by the petitioner. Appeal preferred by the petitioner against the said order has been dismissed by lower appellate court vide impugned judgment Annexure P/9. Feeling aggrieved, defendant no. 2 has filed this revision petition to challenge the aforesaid orders of the courts below.

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I have heard counsel for the parties and perused the case file. Motion order dated 29.3.2012 is reproduced hereunder:-

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“Learned counsel for the petitioner contends that the petitioner was impleaded as party-defendant no. 2 to the suit vide order dated 05.11.2009 Annexure P-3 and was proceeded ex parte on 28.01.2010 vide order Annexure P-4 and moved application dated 11.08.2010

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Tiwana Dalbir Singh 2013.09.26 10:36 I attest to the accuracy and integrity of this document. High Court, Chandigarh

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Civil Revision No. 1960 of 2012

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Annexure P-5 for setting aside the ex parte proceedings and, therefore, it cannot be said that petitioner caused any unreasonable delay in progress of the suit. It was also contended that summons by registered post was not sent to correct residential address of the petitioner. However, it appears that the summons was sent by post at shop of the petitioner who is admittedly Halwai. It was also contended that the petitioner is not related to defendant No. 1/respondent No. 2 who was contesting the suit.

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Notice of motion to respondent No.1-plaintiff only for 30.04.2012.

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Meanwhile passing of final judgment by the trial Court shall remained stayed.”

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Counsel for the petitioner reiterated the contentions noticed in

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the aforesaid order.

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On the other hand, counsel for respondent no. 1 contended that petitioner was duly served in the suit and therefore, there is no sufficient ground for setting aside ex-parte proceedings against the petitioner.

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I have carefully considered the matter. Petitioner was proceeded against ex parte on the report of refusal of summons sent by registered post. He filed application Annexure P/5 for setting aside ex parte proceedings without much delay. He has specifically asserted that he is not related to defendant no. 1 who was already contesting the suit although

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Tiwana Dalbir Singh 2013.09.26 10:36 I attest to the accuracy and integrity of this document. High Court, Chandigarh

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Civil Revision No. 1960 of 2012

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petitioner has been declined the necessary relief by the courts below on the ground that the petitioner is related to defendant no. 1 who was already contesting the suit. Courts are liberal in setting aside ex parte proceedings, may be on payment of costs, unless the applicant has some malafide intention or oblique motive or there is some such like other circumstance to decline the same.

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In the facts and circumstances of the instant case, I am of the considered opinion that ends of justice require that the ex parte proceedings against petitioner should be set aside on payment of costs.

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Resultantly, the instant revision petition is allowed and the ex parte proceedings ordered against the petitioner vide order Annexure P/4 are set aside and application Annexure P/5 filed by the petitioner is allowed by setting aside order Annexure P/7 passed by the trial court and judgment Annexure P/9 passed by the lower appellate court, subject to payment of ` 15,000/- as costs precedent.

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As prayed for by counsel for the plaintiff-respondent no. 1, the trial court is directed to expedite the disposal of the suit keeping in view its docket.

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Civil miscellaneous application, if any pending, is disposed of

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as having been rendered infructuous.

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September 24, 2013 'dalbir'

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Tiwana Dalbir Singh 2013.09.26 10:36 I attest to the accuracy and integrity of this document. High Court, Chandigarh

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Civil Revision No. 1960 of 2012

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Tiwana Dalbir Singh 2013.09.26 10:36 I attest to the accuracy and integrity of this document. High Court, Chandigarh

Parkash Chand v. Bhushan Kumar and Others

Case brief

What is this about?

What did the court decide?

Parkash Chand v. Bhushan Kumar and Others

Case brief

What is this about?

What did the court decide?

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