Punjab-Haryana High Court
Malkit Singh vs Surjit Kaur And Ors on 6 October, 2021
CR-2243-2021 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-2243-2021
Date of decision:-6.10.2021
Malkit Singh
...Petitioner
Versus
Surjit Kaur and others
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.Navinder Jit Singh Dandiwal, Advocate
for the petitioner.
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H.S. MADAAN, J.
Plaintiff Malkit Singh had brought a suit against defendant
Surjit Kaur and two others seeking symbolic possession as owner by way
of specific performance of agreement to sell dated 12.10.1992 said to have
been entered into between defendant No.1 - Surjit Kaur through her
attorney Balwinder Singh - defendant No.3 and her sister Mukhtiar Kaur
with plaintiff on 12.10.1992 for 64 kanals 14 marlas of land situated at
village Buraj Hamira, District Moga for Rs.6 lakhs, the sellers receiving
the entire consideration amount. According to the plaintiff, in pursuance
of the said agreement to sell, Mukhtiar Kaur had transferred her share in
the said land i.e. measuring 32 kanals 07 marlas in favour of the plaintiff
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but defendant No.1 did not do so. As such he had brought the suit for
symbolic possession as owner by specific performance of agreement to
sell dated 12.10.1992 with consequential relief of permanent injunction
restraining the defendants from alienating the land in question in any
manner and from interfering in the peaceful, lawful and continuous
possession of the plaintiff over it; in the alternative suing for recovery of
Rs.3 lakhs along with interest and cost.
Notice of the Civil Suit bearing No.102/2016 was given to
the defendants. On getting notice, defendant No.3 put in appearance,
whereas defendants No.1 and 2 had not appeared and were proceeded
against ex-parte.
Issues on merits were framed. The parties were given
opportunities to lead evidence. Then the trial Court of Additional Civil
Judge (Sr.Divn.), Nihal Singh Wala vide judgment dated 17.2.2018 had
decreed the suit with regard to main relief of symbolic possession as
owner by way of specific performance of agreement to sell granting time
of three months to defendant No.1 to execute the sale deed in favour of
the plaintiff as per terms and conditions of the agreement to sell and then
get the sale deed registered in his favour. The suit was further decreed for
the relief of permanent injunction restraining the defendant from
interfering into peaceful, lawful and continuous possession of the plaintiff
over the suit land forcibly, illegally, unjustly and without due course of
law.
Subsequently, defendant No.1 Surjit Kaur moved an
application under Order 9 Rule 13 CPC for setting aside of ex-parte
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judgment and decree dated 17.2.2018. In the said application, the
defendant No.1 contended that she is a permanent resident of Canada; she
was not served in the suit due to wrong address given in the plaint by the
plaintiff; she came to know about the ex-parte decree on 5.3.2018 when
she came to the Court complex for some other work and contacted her
counsel, who applied for certified copy of judgment and decree dated
17.2.2018 on 6.3.2018, which were delivered on 13.3.2018. Therefore, the
application was filed.
The application was resisted by the plaintiff contending that
applicant/defendant No.1 had not appeared before the trial Court
intentionally despite having knowledge of pendency of the said suit; she
had also filed an application for partition of land before District Revenue
Officer, Moga, wherein she had stated that plaintiff had already filed a
civil suit, which was pending in the Court at Nihal Singh Wala. Therefore,
no ground for setting aside of ex-parte judgment and decree qua defendant
No.1 is made out.
Learned Additional Civil Judge (Sr.Divn.), Nihal Singh Wala
had framed issues for proper adjudication of the controversy between the
parties and afforded opportunities of leading evidence to them. Thereafter,
vide detailed order dated 16.7.2021, he accepted the application and set
aside the judgment and decree dated 17.2.2018 against such defendant
No.1.
This order left the plaintiff aggrieved and he has filed the
present civil revision petition praying that this order be set aside and
application in question be dismissed.
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I have heard the learned counsel for the petitioner besides
going through the record.
Needless to say the Courts are there to do substantial justice
between the parties, rather than adopting a hyper technical approach and
in the process getting bogged down therewith. The rules of procedure are
meant for advancing ends of justice and such rules are handmaid of
justice. It is always desirable to decide a lis after hearing both the parties,
rather than shutting doors of contest upon a party by adopting a very
technical approach to the matter. When one party comes to the Court
presenting his case, then for finding a clear picture with regard to the
matter in question, version of the other party should also be there before
the Court. If a matter is decided considering case of one party only then
that may result in miscarriage of justice, which is uncalled for. The Court
after getting the versions of the contestants may proceed to decide a lis in
accordance with law. Here it is specific case of defendant No.1 - Surjit
Kaur that she happens to be a resident of Canada and the plaintiff had not
given her correct address of that country resultantly, she was never served
in that case, as such could not put in appearance when so summoned by
the trial Court. There is not much delay in filing the application. The trial
Court by analysing the stand taken by the contestants, in support of which
they had led evidence, had found sufficient grounds to set aside the ex-
parte judgment and decree qua defendant No.1.
I find that the impugned order is well reasoned, which does
not suffer from any illegality or infirmity and no interference therewith is
called for while exercising jurisdiction under Article 227 of the
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Constitution of India.
Thus, finding no merit in the civil revision petition, the same
stands dismissed.
6.10.2021 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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