Judgment

Mr. Harsimran Singh Sethi, J.

Present civil revision petition has been filed for setting aside the ex parte judgment and decree dated 24.11.2009 (Annexure P-4 and P-5) by which the suit filed by respondent No.1 has been decreed, the order dated 06.12.2016 (Annexure P-7) passed by the trial Court dismissing the application preferred by the petitioner under Order 9 Rule 13 of the CPC for setting aside the said ex parte decree as well as the order dated 26.10.2018 (Annexure P-9) passed by the lower Appellate Court upholding the order dated 06.12.2016 passed by the trial Court on an application under Order 9 Rule 13 of the CPC.

2. Certain facts needs to be mentioned for correct appreciation of the controversy in hand.

3. Respondent No.1 is the son of the petitioner herein and the other respondents are brothers and sisters of respondent No.1 i.e children of petitioner herein. The suit was filed by respondent No.1-plaintiff seeking possession by way of specific performance on the basis of the agreement to sell dated 27.02.1997 and the date of registration of sale deed was fixed for 28.07.1997, which was further extended by an agreement dated 26.07.1997. In the said civil suit, the petitioner as well as respondents No. 2 to 4 were impleaded as defendants. At the time when the suit was filed, it is being alleged that respondents No. 2 and 3 were minor. Petitioner along with other defendants appeared to defend the suit through a counsel but later on, on the statement of the said counsel that he has no instructions, the trial Court vide order dated 06.08.2009 proceeded ex parte against defendant No.1 to 3 and 4.

4. Thereafter, an ex parte decree was passed on 24.11.2009 decreeing the suit in favour of respondent No.1-plaintiff qua the specific performance of the agreement to sell with regard to the property in question, which is a house wherein all the petitioner as well as defendants were jointly residing. Thereafter, an execution petition was filed by respondent No.1 for the execution of the ex parte decree dated 24.11.2009 and immediate upon the receipt of the notice, the application was filed under Order 9 Rule 13 of the CPC for setting aside the ex parte decree on 15.10.2012 itself. It was mentioned in the said application that petitioner No.1 is an illiterate lady and other defendants who were minor, were made to understand by their counsel that as and when their presence will be necessary, they will be called, hence, under the impression that they are being defended properly, the defendants never came to knew that they have been proceeded ex parte keeping in view the statement of the counsel and ex parte decree has been passed. As alleged that upon coming to knew that an ex parte decree has been passed against the petitioner/defendants, an application under Order 9 Rule 13 of the CPC was filed for setting aside the said ex parte decree.

5. The trial Court considered the said application and held that once the petitioner/defendants were represented by a counsel, it is clear that they were served, hence, it was their duty to defend themselves diligently and the Court only acted once the counsel defending defendants No. 1 to 3, as projected pleaded no instructions. Hence, once the defendants absented themselves without there being any valid justification, it cannot be said that they had a valid justification for not defending themselves properly before being proceeded ex parte and the application filed under Order 9 Rule 13 was dismissed on 06.12.2016.

6. Against the said order, the appeal was preferred by the petitioner which appeal has also been dismissed by the lower Appellate