Ajit Singh Deceasedth Lr vs Dharmender And Others
2022 Latest Caselaw 16944 P&H

              CR-3462-2022                                                                 [1]



              118
                         IN THE HIGH COURT OF PUNJAB AND HARYANA
                                       AT CHANDIGARH

                                                       CR-3462-2022
                                                 Date of Decision: December 15, 2022

              Ajit Singh deceased through LR                             ........ Petitioner
                                                     Versus
              Dharmender and ors.                                   ......... Respondents

              CORAM:            HON'BLE MR. JUSTICE HARKESH MANUJA

              Present:-         Mr. Rakesh Dhiman, Advocate for the petitioner.

                                Mr. S.K. Tripathi, Advocate for respondent No.1.
                                                       ****

              HARKESH MANUJA, J. (ORAL)

By way of present revision petition, challenge has been

made to an order dated 18.07.2022 passed by the Court of learned Civil

Judge, Junior Division, Pataudi; whereby an application for setting aside

the ex parte order dated 15.11.2017 moved at the instance of one of the

legal heirs of defendant No. 1 has been dismissed.

Brief facts of the case are that respondent No.1 filed a suit

for separate possession by way of partition along with grant of relief of

permanent injunction against the predecessors-in-interest of petitioner

and others, claiming himself to be co-owner over 14 marlas of land

situated in the revenue state of village Babra Bakipur, Tehsil Farukh

Nagar, District Gurugram as detailed in para 2 of the plaint. The same

was allowed vide judgment and decree dated 30.08.2017 passed by the

learned trial Court.

Based thereupon, respondent No. 1 applied for passing of

final decree. Notices were issued thereupon. It has been stated at the

PARUL 2022.12.19 18:07 I attest to the accuracy and authenticity of this document CR-3462-2022 [2]

instance of petitioner that he being one of the legal heirs of defendant

No.1 was never served at that stage and was wrongly proceeded

against ex parte vide order dated 15.11.2017.

Learned counsel for the petitioner submits that petitioner

only came to know about the final partition proceedings from one of the

co-villager and immediately, thereafter, moved an application for setting

aside the ex parte proceedings carried out against him, however, the

prayer made at his instance was dismissed by the trial Court vide its

order dated 18.07.2022 and the same has now been impugned by way

of present revision petition.

Notice was issued to respondent No.1 vide order dated

31.08.2022. In pursuance thereof, Sh. S.K. Tripathi, Advocate puts in

appearance.

At the time of hearing, learned counsel representing

respondent No.1 submits that he shall have no objection, in case the ex

parte proceedings dated 15.11.2017 as ordered against the petitioner

are set aside, subject to respondent No.1 being permitted to raise

construction over the portion of property in his possession only. To this,

learned counsel for the petitioner submits that he shall have no

objection, however, the construction be permitted, subject to final

outcome of the partition proceedings.

Accordingly, in view of the statements made at the instance

of both the respective counsels, order dated 18.07.2022 passed by the

trial Court is hereby set aside, allowing the application filed at the

PARUL 2022.12.19 18:07 I attest to the accuracy and authenticity of this document CR-3462-2022 [3]

instance of petitioner by permitting him to participate in the final partition

proceedings from the stage when he was proceeded against ex parte.

In the meanwhile, respondent No.1 may continue with the

construction activity over the land in his possession only, however, the

same shall be subject to his own risk and responsibility and the final

outcome of the partition proceeding.

In view of the fair stand taken at the instance of respondent

No.1, permitting the petitioner to participate in the final partition

proceedings, in order to balance the equities, the petitioner shall deposit

a sum of Rs.15,000/- as costs before the trial Court, which shall be

released in favour of respondent No.1.

Considering the fact, that the partition proceedings are

pending before the trial Court since long, the trial Court is requested to

make every endeavour to dispose of the same finally within a period of

six months from the date of receipt of certified copy of this order.

Pending application(s), if any, shall also stand disposed of

December 15, 2022 ( HARKESH MANUJA ) parul JUDGE

Whether speaking/reasoned Yes/No Whether Reportable Yes/No

PARUL 2022.12.19 18:07 I attest to the accuracy and authenticity of this document