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2023 Supreme(Online)(P&H) 3585
HIGH COURT OF PUNJAB AND HARYANA
DARSHAN SINGH & ORS – Appellant
Versus
MALKIAT SINGH – Respondent
/7077/2018
The interest of the innocent party should not suffer for misdemeanor or inaction of his counsel.
Headnote:
EX PARTE PROCEEDINGS - SETTING ASIDE - REFUSAL TO ACCEPT SUMMONS - ERROR ON PART OF COUNSEL - INTEREST OF INNOCENT PARTY
Fact of the Case:
Plaintiff filed a suit for damages against the petitioners for allegedly filing malicious and false complaints. The petitioners were directed to be proceeded against ex parte after their counsel refused to accept notice of an application for preponement of the hearing. The petitioners filed an application to set aside the ex parte order, which was dismissed by the trial court.
Finding of the Court:
The High Court set aside the impugned order and allowed the revision petition filed by the petitioners. The court held that the trial court erred in passing the impugned order as it was clear from the facts that the petitioners were proceeded against ex parte post haste.
Issues: Whether the trial court erred in proceeding against the petitioners ex parte without giving them a proper opportunity to be heard.
Ratio Decidendi: The court relied on the following principles:- The interest of the innocent party should not suffer for misdemeanor or inaction of his counsel.- The petitioners had diligently pursued the matter and it was unlikely that they were aware of the fact that they had to be present on the date of the preponed hearing.- The plaintiff could have moved the application for preponement of the case any time in the intervening two months between the date of the original hearing and the date of the preponed hearing.
Final Decision: The High Court set aside the impugned order dated 07.10.2018 and allowed the present Revision Petition.
Page 1 of 7
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No.7077 of 2018
Date of Decision: 06.01.2023
Darshan Singh & Others
.......... Petitioners
Versus
Malkiat Singh & Others
.......... Respondents
CORAM:
HON’BLE MS. JUSTICE NIDHI GUPTA
Present:-
Mr. Sandeep Arora, Advocate for the petitioners.
Mr. Rishabh Gupta, Advocate for the respondents.
*****
Nidhi Gupta, J.
Prayer in the present Revision Petition is for setting
aside impugned order dated 07.10.2018 Annexure P14 whereby application
filed by the petitioners (Annexure P12), seeking setting aside of order dated
11.07.2018 (Annexure P11) vide which they were directed to be proceeded
against ex parte has been dismissed.
Brief facts of the case are that the respondent
No.1/plaintiff had filed a suit for recovery of Rs.6 lakhs as
damages/compensation on account of malicious and false complaints
allegedly filed against him by the petitioners and respondents No.2 and 3
herein. The evidence of the plaintiff was closed by order dated 19.12.2017.
An application filed by the petitioners before the learned trial court to
recall the plaintiff for cross-examination was allowed on 7.4.2018.
Ultimately the matter was listed for 13.7.2018 for cross-examination of the
plaintiff. However on 10.7.2018 an application (Annexure P-9), was moved
by the plaintiff for preponement of hearing of the matter which was
SUNENA
2023.01.09 18:01
I attest to the accuracy and
integrity of this document
Page 2 of 7
allowed by the trial court and matter was fixed for 11.7.2018. Purportedly
notice of the said application was issued to counsel for the petitioners for
11.7.2018.It is the pleaded case of the petitioners that counsel for the
petitioners never received any notice of the application for preponement
and neither had he refused to accept the summons. However, the
application for preponement was allowed and matter was preponed to
11.7.2018 itself whereupon all the petitioners were directed to be
proceeded against ex-parte. Thereafter, petitioners immediately filed
application dated 13.7.2018 (Annexure P12) for setting aside of above said
order dated 11.7.2018 whereby they had been directed to be proceeded
against ex-parte. However the same has been dismissed by the learned
Court below vide impugned order dated 7.10.2018.
It is submitted by learned counsel for the petitioners
that the learned Court below has acted in a most irregular and arbitrary
manner and that even if there had been some misunderstanding in
receiving summons on behalf of counsel for the petitioners then fresh
notice ought to have been issued to them and the matter could not have
been decided in their absence. It is further submitted that even if it is
accepted that there had been any refusal on the part of counsel for the
petitioners to accept summons, the petitioners cannot be made to suffer
on this account. Moreover, it is submitted that grave injustice will be
caused to the petitioners if impugned order is not set aside.
In response, it is submitted by learned counsel for the
respondent No.1/plaintiff that perusal of the impugned order shows that it
has
been
very
clearly
found
that
learned
counsel
for
the
SUNENA
2023.01.09 18:01
I attest to the accuracy and
integrity of this document
Page 3 of 7
petitioners/defendants had refused to accept the said notice and it is well
settled that when notice is refused it is deemed as proper service.
I have heard learned counsel for the parties.
A brief sequence of events is required to be noticed in
order to properly appreciate the matter. On 05.07.2013, the learned trial
Court gave last opportunity to respondent No.1/plaintiff to file RC/AD for
service of the petitioners/defendants subject to cost of Rs.500/- and
adjourned the case for 21.08.2013. However, on 21.08.2013, no one
appeared on behalf of respondent No. 1/plaintiff and no cost was
deposit
