Revision against dismissal of an application under Order 9 Rule 13 CPC to set aside an ex parte decree for possession by way of specific performance. The High Court upheld concurrent findings that the petitioner had used the same address in subsequent litigation and that the application was beyond limitation.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CR-1016-2024
2024:PHHC:106628
126 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR-1016-2024
Date of Decision: August 20, 2024
Gurnam Singh …Pe,,oner
Versus
Rana Rupinder Singh and another
…Respondents
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Present: - Mr. Hardial Singh Baath, Advocate for the pe��oner.
DEEPAK GUPTA, J.(Oral)
Pe��oner herein was defendant No.2 in Civil Suit No.248 of 2009,
�tled as “Rana Rupinderjit Singh v. Lovepreet Singh and another”. Suit filed by
plain�ff – Rana Rupinder Singh (respondent No.1 herein) seeking a decree for possession by way of specific performance of agreement to sell dated 17.02.2009, was decreed ex parte on 04.12.2013 against the share of the pe��oner – defendant No.2 in the suit property. Pe��oner moved an applica�on under Order 9 Rule 13 CPC, which was dismissed by the trial Court on 16.08.2021. Appeal against that order has been dismissed by the Appellate Court by learned Addl. District Juddge, Tarn Taran vide order dated 21.12.2023.
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“Holis�c evalua�on of the grounds of appeal as well as the stance of the appellant/defendant No.2 in the applica�on so filed under Order 9 Rule 13 CPC reveals that the principal premise of the applica�on filed under Order 9 Rule 13 CPC was that appellant was a resident of House no. 72, Punjab Modern Complex, Baltana near Zirkpur for the la many years and this fact had been concealed by the plain�ff/respondent from the learned Trial Court. Thus, with the highlighted core asser�on, it was contended by the appellant that effec�ve service of summons was never carried out upon him. He had examined his father, Harbhajan Singh as AW1 and himself as AW2 and both of them had essen�ally reiterated the same version. However, the claim of the appellant/defendant no.2 was profoundly falsified by the documents proved upon record by the plain�ff/respondent. Ex.R2 was cer�fied copy of the plaint in a suit which was filed by State Bank of India against appellant seeking recovery of Rs.5,53,936/- and the address so men�oned in the same was similar to the address so men�oned in the civil suit in which judgement Ex.AX was passed. It being 'resident of village Rasulpur, Tehsil and District Tarn Taran'. So much so, the appellant had appeared in the recovery suit and had filed a wri;en
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statement, the corresponding affidavit was proved as Ex.R3. The same had been executed on 17.07.2017 and even in the same, the appellant had men�oned the same address of his residence which had been men�oned in the civil suit to which the applica�on under Order 9 Rule 13 relates. The judgement Ex.AX shows that the suit was filed on 20.11.2009 and was decided on 04.12.2013. The affidavit had been executed by the appellant along with the wri;en statement in the recovery suit, Ex.R3 on 17.07.2017 i.e. way a?er the decision of the civil suit from which the present proceedings emanate. To rephrase, the appellant according to his own acknowledgement, had been residing on the same address which was men�oned in the suit way a?er the decision of the same. So much so, Ex. R6 is the cer�fied copy of the appeal which was filed by the appellant against the judgement and decree dated 22.08.2019 passed in recovery suit. The same was filed in the year 2019 and again the address of the appellant was the same as had been men�oned in the suit which was filed by the present respondent/plain�ff. When confronted on this count, the appellant in his cross examina�on dated 08.11.2019 had admi;ed that the bank had filed a recovery suit which was decreed against him and he had appeared in the same through his counsel and that he had also filed an appeal against the judgement and decree. Thus, the fact that the appellant himself had been men�oning the same address of his residence in separate civil suit which had been men�oned in the civil suit from which the present proceedings stem, had appeared in and contested the same and had even filed an appeal with the same address men�oned goes on to amply establish the fact that the appellant/defendant no.2 had been always a residence of the same address so men�oned in the suit and correspondingly falsifies the claim of the appellant/defendant no.2.
12. Also in the applica�on so filed by the appellant under Order 9 Rule 13 CPC, it had been claimed that the father of the appellant had received summons of the execu�on on 25.03.2015 without copy of the execu�on applica�on. This claim, however, had remained unconvincing, self serving and more of an empty rhetoric. Neither the execu�on filed was ever got summoned and nor the cer�fied copy of
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the report made by the process server upon the summons issued in the execu�on was placed upon record and nor the concerned process server was ever examined. In such circumstances, no such favourable presump�on can be drawn that summons were received by father of the appellant on 25.03.2015 without the copy of the execu�on. Thus, even, from 25.03.2015, the applica�on which was filed by the appellant under order 9 rule 13 CPC was barred by law of limita�on under ar�cle 123 of the Limita�on Act, 1963. The period for limita�on to set aside a decree passed exparte, so prescribed, is 30 days from the date of decree or where the summons or no�ce was not duly served, when the applicant had knowledge of the decree. In the case at hand, as the version of the appellant goes, the summons had been received on 25.03.2015 by his father which implies the knowledge of the appellant of the present proceedings since it is not the stance of the appellant that his father was not in talking terms with him. Rather, his father had deposed in favour of the appellant as AW1. On this score, the observa�on made by the Court is validated by the admission made by the appellant in his cross examina�on dated 08.11 2019 where he admi;ed it to be correct that the copy of the main suit had been received on 25.03.2015. The applica�on at hand was filed on 11.05.2015, apparently beyond the period of 30 days from the date of knowledge of the appellant i.e. 25.03.2015 All the afore referred cri�cal facts had been duly noted by the learned Trial Court while dismissing the applica�on so filed under order 9 rule 13 CPC and had cons�tuted the very founda�on of the order.”
had given the same address as men�oned in the suit, in the subsequent li�ga�on and as such his conten�on that he was not residing at the given address, was found to be meritless. It was further found by the Courts below that pe��oner had come to know regarding the ex parte judgment and decree against him on 25.03.2015 when summons of the execu�on applica�on was received by his father. His father
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had even deposed in his favour as AW1 and therefore, it could not be contended by the pe��oner that his father had not informed him about ex parte judgment and decree against him. Thus, applica�on under Order 9 Rule 13 CPC was found to have been moved beyond limita�on period.
August 20, 2024 (DEEPAK GUPTA) sarita JUDGE Whether reasoned/speaking: Yes/No Whether reportable: Yes/No
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2 issues framed by the court
Whether the ex parte decree against the petitioner could be set aside under Order 9 Rule 13 CPC on the ground that his correct address was concealed and he was not duly served.
Whether the application under Order 9 Rule 13 CPC was barred by limitation under Article 123 of the Limitation Act.
2 provisions across 2 enactments
Gurnam Singh
Rana Rupinder Singh
Deepak Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
