Punjab-Haryana High Court
Surjit Singh Through His Lrs And ... vs Phoolwati Through Lrs And Others on 7 December, 2022
CR-5106-2022(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-5106-2022(O&M)
Date of decision:-7.12.2022
Surjit Singh through his LR
...Petitioner
Versus
Smt.Phoolwati through her LRs and others
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.Deepkaran Dalal, Advocate
for the petitioner.
****
H.S. MADAAN, J.(ORAL)
1. Briefly stated, facts of the case are that plaintiff
Smt.Phoolwati and others, residents of village Baghola, Tehsil Palwal,
District Faridabad and other plaintiffs in different suits had brought civil
suits seeking declarations with possession as a consequential relief against
various defendants. Civil Suit No.318 of 1993 titled 'Smt.Phoolwati and
others Versus Smt.Chandra and others' was treated as main suit and facts
of that case were mentioned.
2. As per the case of the plaintiffs, they have become owners of
agricultural land measuring 2 kanals 9 marlas situated at village Seikhpur;
the suit land was mortgaged with possession with the predecessors-in-
interest of plaintiffs more than 60 years back, which was not got redeemed
and right to redeem had been lost on account of expiry of period of
redemption; during the period of mortgage one Smt.Gulab Kaur was
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mortgagee in possession of the suit land and she was succeeded in law by
plaintiff No.1 Smt.Phoolwati wife of Sh.Kesariya and Smt.Budho
daughter of Jamna Lal; Smt.Budho had died and plaintiffs No.2 to 8 are
her legal heirs and successors-in-interest; defendants No.1 to 15 are
recorded as mortgagors, whereas defendant No.16 is wrongly recorded as
mortgagee and defendant No.16 has no right, title or interest in the suit
land and it was wrongly mutated in favour of defendant No.16 i.e.
Haryana State Government by way of escheat vide mutation No.21
decided on or about behind the back of Smt.Budho and Smt.Phoolwati -
daughters and Smt.Chameli wife of Jiwan Lal in collusion with the then
recorded mortgagors; the said mutation was sanctioned without notice and
knowledge of the heirs and successors of Smt.Gulab Kaur, therefore does
not confer any right or title on defendant No.16 and mutation is liable to
be set aside; defendants No.1 to 15 had not got the suit land redeemed
within period fixed for redemption by law, in that way the plaintiffs have
become owners of suit land.
3. The other four suits filed against other defendants are almost
on the similar lines wherein the plaintiffs claimed to have become owners
of the land, which is subject matter of those suits by efflux of time due to
extinguishment of right of redemption of mortgagors. All the five suits
were consolidated and it was decided that evidence shall be recorded in
the main suit i.e. Civil Suit No.318 of 1993.
4. Notice of the suits had been given to defendants but they did
not appear despite service, as such the were proceeded against ex-parte.
During the evidence of the plaintiffs, Gurdayal Gur Dutt appeared as PW1
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and Sarup Singh as PW2. Thereafter, the counsel for the plaintiffs
tendered in evidence documents Ex.P1 to Ex.P37 on 31.1.1996 and
Ex.P38 to Ex.P63 on 9.5.1996 in additional evidence.
5. After hearing arguments, the trial Court of Civil Judge
(Jr.Divn.), Palwal vide judgment dated 21.5.1996 concluded that the suit
land had not been redeemed with the stipulated period, as such the
plaintiffs had become owners of the suit land. A decree for possession was
also passed in each suit in favour of the plaintiffs against the defendants.
The suit had been decreed exparte.
6. Subsequently, Motha Singh son of Malha Singh, Inder Singh,
Pala Singh, Surjit Singh sons of Punjab Singh son of Ujagar Singh,
residents of village Sekhpur, Tehsil Palwal, District Faridabad filed an
application under Order 9 Rule 13 CPC for setting aside of ex-parte
decree dated 21.5.1996 and ex-parte proceedings initiated vide order dated
11.10.1994 on behalf of defendants No.1 & 4 and LRs of defendants No.2
and 3. As per the version of the applicants, they were never served in any
manner and the plaintiffs have deliberately given incorrect addresses of
defendants so as to procure a decree in their favour; as a matter of fact, the
applicant/defendants are residing at Mala Singh Farm in village Baghpur
Kalan permanently since the year 1950 and they have never resided in
village Shekhpur; no proclamation/munadi was ever done in the village
where the defendants reside and on the basis of false report on the
summons of munadi, the Court directed that the defendants be proceeded
against ex-parte vide order dated 11.10.1994; the defendants came to
know about existence of ex-parte judgment and decree dated 21.5.1996
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for the first time on 8.5.2006, in that way their non-appearance in the civil
suit was not intentional or wilful. Therefore, the order passed by the trial
Court declaring the defendants to be duly served and then proceeding
against them ex-parte and further ex-parte judgment and decree passed are
liable to be set aside.
7. On notice, the respondents/plaintiffs appeared and filed
written reply on 25.9.2007 contending that the application is barred by
time and the applicants are guilty of concealment of true facts; as a matter
of fact, the applicants/defendants were duly served through agency of the
Court and they were legally and validly proceeded against ex-parte on
11.10.1994 and later on decree dated 21.5.1996 was properly passed in
their favour; the ex-parte judgment and decree has already been executed
and the respondents/plaintiffs have taken possession of the suit land; the
allegations of the plaintiffs having played a fraud with the Court by
colluding with the Process Server and preparing a false report were
dubbed as wrong and incorrect. The respondents/plaintiffs prayed for
dismissal of the application. Following issues were framed for the purpose
of effective decision of the application:
1. Whether the impugned judgment and decree dated 21.5.1996 and
ex-parte order dated 2.3.1994 are liable to be set aside on the
grounds as alleged?OPP.
2. Relief.
8. The parties were afforded adequate opportunities to lead
evidence in support of their respective claims.
9. After hearing arguments, the trial Court decided issue No.1
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against the applicants and in favour of respondents, issue No.2 was
decided against the applicants/defendants. Resultantly the application was
dismissed vide order dated 8.4.2011.
10. Feeling aggrieved, the applicant/defendants had preferred an
appeal before District Judge, Palwal, which was assigned to Additional
District Judge, Palwal, who vide judgment dated 21.2.2014 dismissed the
appeal.
11. Now such applicant/defendants have approached this Court
by way of filing a revision petition.
12. I have heard learned counsel for the petitioners besides going
through the record and I find that there is no merit in the revision petition.
13. The impugned judgment in this case was passed on 21.5.1996
by the trial Court of Civil Judge (Jr.Divn.) Palwal, whereas the application
for setting aside of ex-parte judgment and decree was filed on behalf of
defendants No.1 to 4 on 16.5.2006 i.e. after a period of about 10 years. No
satisfactory reason for such delay has been given or proved. The
limitation for filing of application for setting aside of ex-parte
proceedings/decree is 30 days, whereas the application in this case has
been filed highly belatedly i.e. after about 10 years without giving any
probable or plausible explanation for the delay. The reasoning given that
the applicants were not served in this case and plaintiffs had manipulated
a false report and then managed to get the applicant/defendants proceeded
against ex-parte does not appeal to reason. The trial Court considering the
facts and circumstances of the case in view of the factual and settled legal
position, had observed that summons Ex.D1 to Ex.D4 had been served
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upon the applicants at village Shekhpur, the delivery report of these
summons shows "refusal" on the part of applicants from receiving the
summons, thereafter munadi Ex.D5 was directed to be carried out; the
munadi was conducted at village Shekhpur, where the suit property is
situated. The application so moved is highly time barred having been filed
after 12 years from the date when they were proceeded against ex-parte on
11.10.1994. The applicants had not filed any application under Section 5
of the Limitation Act for condonation of delay in filing the application.
Their plea raised by them that they came to know about ex-parte judgment
and decree from the plaintiffs/respondents on 8.5.2006 was found to be
least convincing. Giving reference to a case law on the subject, learned
trial Court had observed that the Civil Court has no power to set aside the
ex-parte judgment and decree if none of the conditions comprised in
Order 9 Rule 13 is fulfilled. The trial Court did not see any reason to set
aside the ex-parte order as well as ex-parte judgment and decree passed
against the applicants/defendants observing that firstly the application
filed by them is highly belated having been filed after about 12 years of
passing of ex-parte judgment and decree and on merits also the applicants
have failed to show that they were not served in this case and they were
wrongly proceeded against ex-parte.
14. When this order was challenged in appeal before Additional
District Judge, Palwal, she after due application of mind did not find any
merit in the application. Learned Additional District Judge, Palwal has
observed that alleged acquisition of knowledge also cannot come to the
rescue of the defendants as they had not given any details as to how and
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under what circumstances did the knowledge came to them at the magical
date of 6.1.1999. Thus application so moved by applicants/defendants
No.1 to 4 was rightly rejected by the trial Court of Civil Judge (Jr.Divn.),
Palwal and the appeal filed by the applicant/defendants No.1 to 4 was
rightly rejected.
15. I find that no fault can be found with the order/judgment
passed by the courts below and no reason is there to interfere with the
impugned order/judgment, which are detailed and well reasoned not
suffering from any infirmity and illegality.
16. Thus, finding no merit in the civil revision petition, the same
stands dismissed.
Since the main revision petition stands dismissed, the
miscellaneous application(s), if any, stand disposed of accordingly.
7.12.2022 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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