Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 2439

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AMARJOT BHATTI, J.
Smt. Santosh & Anr. – Petitioners
Versus
Vijay Pal & Ors. – Respondents
CR-7096 of 2017 (O&M)
Decided On : 05-12-2023

Advocates Appeared:
Mr. Sunil Chadha, Senior Advocate with Ms. Devyani Sharma, Advocate; For the Petitioners
Mr. Aashish Chopra, Senior Advocate with Ms. Nitika Sharma, Advocate for Respondent No. 1 in CR-7096-2017 and for Respondent No. 9 in CR-7099-2017.
Mr. Amit Jain, Senior Advocate with Mr. Anupam Mathur, Advocate for Respondent Nos. 1 to 4 in CR-7099-2017.

Defendants must demonstrate sufficient cause for absence in ex-parte proceedings; mere claims of ignorance or improper service do not suffice.

Headnote:(A) Civil Procedure Code, 1908 - Order 9 Rule 13 - Ex-parte decree - The petitioners sought to set aside the judgment of the Additional District Judge allowing appeals against the dismissal of applications to set aside an ex-parte decree. The court held that the defendants failed to prove sufficient cause for their absence and that the trial court's reasoning was sound. (Paras 1-6)

(B) Service of summons - The court ruled that proper service was established, and the defendants' claims of ignorance were rejected. (Paras 3-5)

(C) Legal representation - The court noted that the defendants had legal representation and could not plead ignorance of proceedings. (Paras 4-6)

Facts of the case:
The petitioners filed civil revisions against the judgment allowing appeals that restored ex-parte proceedings. The original suit sought declaration of ownership and injunction against defendants.

Findings of Court:
The court found that the trial court's order was justified and that the defendants had not established sufficient cause for their absence.

Issues: The main issues were whether the defendants were properly served and whether they had sufficient cause for not appearing.

Ratio Decidendi: The court emphasized that the defendants must demonstrate sincere intent to appear and that mere claims of lack of knowledge do not suffice.

Result: Civil revisions accepted, impugned judgment set aside, order of trial court restored.

JUDGMENT

Amarjot Bhatti, J.

The petitioners/plaintiffs Santosh and Sushma alias Rekha have filed two Civil Revisions under Article 227 of the Constitution of India for setting aside the common judgment dated 30.08.2017 (Annexure P-12) passed by the Court of learned Additional District Judge, Gurugram in Civil Appeal No. 66 of 11.05.2015/10.08.2015 (M/s S.J. Towers and Developers Private Limited and others v. Smt. Santosh and another) and in Civil Appeal No. 86 of 15.05.2015/06.07.2017 (Vijay Pal v. Smt. Santosh and others) and to restore the common order dated 07.04.2015 (Annexure P-9) passed by the Court of learned Civil Judge (Junior Division), Gurgaon, whereby the application filed under Order 9 Rule 13 read with Section 151 C.P.C. for setting aside exparte judgment and decree dated 07.03.2006 filed by applicant/defendant No. 8 Vijay Pal and application under Order 9 Rule 13 read with Section 151 C.P.C. filed by applicants/defendants No. 5 to 7 and 9 were rightly dismissed. Both these civil revisions have arisen out of the same judgment dated 30.08.2017 (Annexure P-12) and order dated 07.04.2015 (Annexure P-9), therefore, the civil revisions are taken up together for disposal.

2. The learned Senior Counsel for the petitioners argued that the learned Additional District Judge, Gurgaon has erroneously allowed the appeal of defendants No. 5 to 7 and 9 on the one hand and respondent/defendant No. 8 on the other hand. In-fact, the facts and circumstances of the case were rightly considered by learned Civil Judge (Junior Division), Gurgaon while dismissing the application under Order 9 Rule 13 C.P.C. by passing well reasoned order dated 07.04.2015, Annexure P-9. The petitioners/plaintiffs had filed Civil Suit No. 141 dated 10.03.1999/07.09.1998 seeking declaration that they are absolute owners in possession of the suit land and challenged mutation No. 784 sanctioned on 24.12.1994 and subsequent sale deeds dated 19.12.1994 and 20.04.1995 and the mutations sanctioned on that basis as illegal, null and void, nonest, void ab initio and the same did not confer any right, title or interest on the defendants along with the relief of permanent injunction restraining the defendants from creating any charge over the property by alienating or transferring the same or changing the nature of property. The copy of said plaint dated 07.09.1998 is Annexure P-1. The defendants No. 1 to 4 i.e. respondents No. 6 to 9 in CR-7096-2017 appeared through their counsel Sh. Anil Grover, Advocate and ultimately the suit was decided vide judgment and decree dated 07.03.2006. The copy of judgment and decree dated 07.03.2006 is Annexure P-2. Sh. Anil Grover, Advocate filed application dated 07.12.2000 seeking one opportunity to file written statement on behalf of defendants No. 5 to 7 and 9. The copy of said application is Annexure P-4. The copy of Memo of Appearance as well as vakalatnama submitted by Sh. Anil Grover, Advocate as well as Sh. Anil Grover, Advocate gave vakalatnama in favour of Sh. G.L. Malik, Advocate, which are Annexure P-5. The learned counsel for defendants No. 5 to 7 and 9 were granted several opportunities to file their written statement. The cost was also imposed and ultimately their defence was struck off vide order dated 10.11.2001.

The defendant No. 8 Vijay Pal had purchased 1/8th share in the suit property who remained unserved by way of ordinary process as well as through registered post. Thereafter, application dated 26.05.2004 was filed to effect his service by way of substitute means, which is Annexure P-6. As per order dated 28.05.2004, the defendant No. 8 was ordered to be served through publication in the newspaper "Bharat Desh Hamara" for 20.09.2004 on filing of publication charges and process fee. The publication was duly effected and thereafter, vide order dated 22.01.2005, the defendant No. 8 Vijay Pal was also proceeded against exparte. The zimni orders for the aforesaid period are placed on record as Annexure P-3. The su