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2019 Supreme(P&H) 2502
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Raj Mohan Singh, J.
Surjit Singh - Appellant
Versus
Punjab Wakf Board - Respondent
CM No. 606-CII of 2019 and CM No. 1443-CII of 2019 in/and CR No. 2373 of 2018 (O&M)
Decided On : 05-02-2019
Mr. Rahul Bhargava, Advocat, for the Appellant; Mr. Ghulam Nabi Malik, Advocate, for the Respondent
The main legal point established in the judgment is that the proviso to Order 9, Rule 13 CPC cannot be applied in a case of no service, and the court has the discretion to condone delay in filing the application under Order 9, Rule 13 CPC.
Headnote:
Fraud - Setting Aside Ex-Parte Judgment - Order 9, Rule 13 CPC - Article 123 of the Limitation Act - [SUMMARY OF ACTS AND SECTIONS REFERENCED: Order 9, Rule 13 CPC, Section 151 CPC, Article 123 of the Limitation Act]
Fact of the Case:
The defendant-petitioner filed an application under Order 9, Rule 13 CPC for setting aside an ex-parte judgment and decree passed by the Wakf Tribunal. The petitioner claimed that he was not lawfully served and came to know about the judgment only during execution. The Tribunal dismissed the application, stating that the petitioner had knowledge of the ex-parte judgment and decree, and the filing of the application after a delay of 04 years was not entertained.
Finding of the Court:
The court found that the petitioner was not lawfully served, and the proviso to Order 9, Rule 13 CPC could not be applied as it was a case of no service. The court also considered the requirement of Order 5, Rule 17 CPC and the aspect of fraud in obtaining the judgment. It deemed it appropriate to condone the delay and set aside the impugned order, allowing the defendant to contest the litigation on merits.
Issues: The main issue was whether the petitioner was lawfully served and had knowledge of the ex-parte judgment and decree. The court also considered the aspect of fraud and the limitation for filing the application.
Ratio Decidendi: The court held that the petitioner was not lawfully served, and the proviso to Order 9, Rule 13 CPC could not be applied. It also considered the requirement of Order 5, Rule 17 CPC and the aspect of fraud in obtaining the judgment. The court deemed it appropriate to condone the delay and set aside the impugned order.
Final Decision: The court accepted the revision petition by setting aside the impugned order, allowing the defendant to contest the litigation on merits.
JUDGMENT
Raj Mohan Singh, J. (Oral) - CM No. 1443-CII of 2019
With the concurrence of learned counsel for both the parties, the main case is ordered to be heard today.
Application stands disposed of.
Main case.
This revision petition has been preferred by the petitioner against the order dated 06.02.2018 passed by Presiding Officer, Wakf Tribunal, Amritsar vide which the application filed by the petitioner under Order 9, Rule 13 CPC for setting aside ex parte judgment and decree dated 05.04.2010 was dismissed.
2. Respondent - Punjab Wakf Board filed a suit for possession of land measuring 30K-8M and for mesne profit for unauthorized use and occupation of the land by the defendant petitioner.
3. Defendant-petitioner was proceeded against exparte vide order dated 18.09.2009 and thereafter, plaintiff led ex-parte evidence and exparte judgment and decree was passed on 05.04.2010.
4. An application was filed by the defendant-petitioner under Order 9, Rule 13 read with section 151 CPC for setting aside ex-parte judgment and decree dated 05.04.2010 passed by Wakf Tribunal, Amritsar.
5. Paras No.3,4 and 5 of the application read as under:-
"3. That the applicant is an old, aged, weak and heart patient and is having the age of 85 years and is a senior citizen. The plaintiff has given wrong address of the applicant/defendant in the plaint whereas the applicant/defendant is residing at his farm house which is at a distance of about 1 KM from abadi Gujjarpura, Tehsil Ajnala, District Amritsar. The fact remains that no process sever ever approached the applicant nor any chowkidar nor any post-man ever approached the applicant/defendant for his service nor any munadi was ever effected nor any publication was effected/made in the newspaper and the plaintiff in a clandestine manner obtained previously an exparte proceedings order against the applicant on 18-9-09 and thereafter obtained an ex-parte judgment and decree on 5- 4-10. Had the appellant been served he must would have appeared in the court and the fate of the case would have been otherwise.
4. That the applicant came to know about the ex-parte judgment and decree only when the DH filed execution before the predecessor of this Hon'ble Court and the JD/applicant earlier engaged Sh. D.S. Gill, Adv. Asr. and filed objections in the execution and also applied for certified copy of the exparte judgment and decree for the purpose of moving an application under Order 9, Rule 13/Sec. 151 CPC for setting aside the exparte judgment and decree dated 5-4-10.
5. That the certified copy of the judgment and decree was delivered to the applicant on 16-9-13 and in the meanwhile the applicant being an old and aged person and a heart patient, suffered heart attack and he remained admitted in different hospitals and as such, he could not file the application immediately. Now after recovering from his illness he engaged Shri M.S. Bhatti, Advocate, Asr. and as such, the instant application under Order 9, Rule 13/Sec. 151 CPC for setting aside the ex-parte judgment and decree dated 5-4-10 is filed today in this Hon'ble Court. However, in order to avoid any complication which may arise later on, a separate application under section 5 of the Limitation Act is also being filed herewith, for the condonation of delay in filing the application under Order 9, Rule 13/Sec. 151 CPC."
6. Perusal of the stand taken by the defendant petitioner would show that the petitioner allegedly came to know about factum of ex-parte judgment and decree only during execution.
7. Wakf Tribunal, Amritsar vide the impugned order dated 06.02.2018 dismissed the application after observing that even if it is assumed that the petitioner was not validly served, then also the onus was upon him to prove as to when he got the knowledge about exparte judgment and decree passed by the Tribunal.
8. The stand taken by the petitioner in the application in respect of acquiring knowledge of exparte judgment and decree was negated on the basis of prov
