Punjab-Haryana High Court
Dalbir Kaur And Anr vs Kashmir Singh And Others on 2 March, 2022
Civil Revision No.388 of 2022 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.388 of 2022 (O&M)
Date of Decision: March 02, 2022
Dalbir Kaur and another
..Petitioners
Versus
Kahsmir Singh and others
...Respondents
CORAM: HON'BLE MR. JUSTICE SUDHIR MITTAL
Present: Mr. Divanshu Jain, Advocate, for the petitioners.
*****
SUDHIR MITTAL, J.
The petitioners are the judgment-debtors. They have
approached this Court through this revision petition because the
Executing Court has refused to recall the order by which they were
proceeded against ex parte.
2. Respondent No.1-plaintiff had filed a suit for possession by
way of specific performance of agreement to sell dated 25.12.2010 in
respect of land measuring 40 kanal 11 marlas. During the pendency of the
suit, the parties reached an amicable settlement and based thereupon
compromise decree dated 10.09.2015 was passed. One of the terms of
the decree was that sale deed was to be executed on or before 15.05.2016
and in case, the remaining consideration amounting to Rs.6.5 lacs was not
deposited by then, the earnest money would stand forfeited and the
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agreement would stand cancelled. According to the petitioners-JDs, the
balance amount was deposited on 08.07.2016. Execution petition was
preferred on 29.11.2018 and the JDs were proceeded against ex parte vide
order dated 08.03.2019. Application dated 21.10.2019 for setting aside
the ex parte order was filed but the same has been dismissed vide
impugned order dated 05.10.2021. The Executing Court has found that
service had been effected through an adult male member of the family i.e.
husband of J.D. No.1 who is also the son of deceased Gopal Kaur (JD
No.2) and thus, no valid ground existed for recall of the order proceeding
ex parte against the JDs. They were, however, permitted to join
proceedings from the stage at which the proceedings stood on the date of
passing of the order.
3. It appears that meanwhile Gopal Kaur-JD No.2 passed away
on 04.12.2019 and vide order dated 01.03.2021 the Executing Court
directed warrants of possession to be kept in abeyance till the decision of
the application filed for setting aside the order by which the JDs had been
proceeded against ex parte.
4. Learned counsel for the petitioners has argued that
impugned order dated 05.10.2021 is illegal and deserved to be set aside.
According to him, Order 5 Rule 15 CPC has been misconstrued by the
Executing Court. Service through an adult member of the family is
permissible only if there is no likelihood of the defendant being found at
the residence within a reasonable time. In this case, on the first date for
service of notice, the JDs have been proceeded against ex parte and thus,
there is no determination of likelihood of not being found. Reliance has
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Civil Revision No.388 of 2022 (O&M) [3]
been placed upon Kishore Kumar Arora vs. Harvinder Singh and others,
2011 (30) RCR (Civil) 250 and a Division Bench judgment of this Court
in Charanjit Singh Mann vs. Neelam Mann, 2006(2) RCR (Civil) 497.
5. A perusal of the Division Bench judgment of this Court in
Charanjit Singh (supra) shows that effecting service through an adult
member of the family is an accepted mode of service provided the party
resides at that address and there is no likelihood of his being found within
a reasonable time. There is no dispute that the JDs resided at the address
mentioned in the summons. Thus, the only point to be examined is
whether the Executing Court has taken into consideration the likelihood of
the JDs not being found within a reasonable time. The case of the
petitioners is that it has not done so but they have not attached the service
report. Had they done so, it could have been seen whether there was
likelihood of the J.D's being found within a reasonable time. Thus, it is
difficult to hold that the Executing Court failed to construe Order 5 Rule
15 CPC properly. In Charanjit Singh (supra), the report of the Process
Server was on record and it stated that the adult member of the family had
informed him that the party had gone abroad after re-marrying. Based
thereupon it was held that service had been validly effected as the party
could not be expected to be found within a reasonable time. The
argument is thus rejected.
6. The next argument raised is based on Order 9 Rule 7 CPC. It
has been submitted that where a party has been proceeded against ex parte
and such party appears before the Court and assigns good cause for the
non-appearance, the Court must permit him/her to join the suit as if he/she
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had appeared on the day fixed for his/her appearance. In this case, good
cause had been assigned as the application for setting aside the order
proceeding against ex parte was filed just 07 months later on acquiring
knowledge from JD No.3. Service had not been effected in person and
service under Order 5 Rule 15 CPC was not proper service. To support
this argument, reliance has been placed upon Kuldip Kaur vs. Gurdeep
Singh, 1993(3) RRR 696.
7. A related argument raised on the basis of Bijay Kumar and
others vs. Shri Sanatan Dharam High School Bhiwani, 2008(4) RCR
(Civil) 633 is that the JDs should have been permitted to join proceedings
with effect from the date of filing of the application for setting aside the
ex parte order even if they had failed to show good cause.
8. In Kuldip Kaur (supra), it has been held that power to set
aside ex parte order should be liberally exercised. The expression 'good
cause' should be interpreted widely and not confined to the restricted
interpretation placed on the expression 'sufficient cause' as mentioned in
Order 9 Rule 13 CPC. There is no quarrel with this proposition of law.
The question is whether the JDs have been able to show 'good cause'.
They failed to put in appearance despite valid service and submission of
an application after seven months cannot qualify as 'good cause'. Hence,
reliance upon the judgment is misplaced. The judgment in Bijay Kumar
(supra) does support the argument raised on behalf of the petitioners that
the JDs should have been permitted to join proceedings w.e.f. the date of
filing of the application but I am respectfully not in agreement with it.
The interpretation placed upon Order 9 Rule 7 CPC is on the basis of a
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judgment of the Supreme Court in Sangram Singh vs. Election Tribunal,
Kotah, AIR 1955, Supreme Court 425 which holds that if good cause is
not shown the party can be permitted to join proceedings prospectively.
The clock cannot be turned back. This is precisely what has been done in
the instant case and thus, this argument is also rejected.
9. It has next been submitted that the application for setting
aside the ex parte order was kept pending for two years. Meanwhile, draft
sale deed was received and directions were issued to the Local
Commissioner to execute the sale deed. While issuing such directions,
notice should have been issued to the JDs as their application for setting
aside the ex parte order was pending. However, no legal principle has
been cited in support of this argument. A person who is not yet a party to
the execution proceedings is not entitled to be given notice. Moreover,
the order by which the Local Commissioner was directed to execute the
sale deed is not under challenge and thus, the argument is rejected.
10. Finally, it has been submitted that the balance sale
consideration having been deposited beyond the time fixed in the decree,
the agreement between the parties stood rescinded in view of Section 28
of the Specific Relief Act, 1963. A right stood accrued in favour of the
JDs on the date of filing of the application for setting aside the ex parte
order and the same could not have been taken away.
11. Section 28 of the Specific Relief Act, 1963 provides for
rescission of the contract by a Court order provided an application in this
regard is made to the Court which passed the decree. The provision does
not make it mandatory for the Court to rescind the contract upon delayed
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Civil Revision No.388 of 2022 (O&M) [6]
deposit of the purchase money. It is in the nature of an enabling provision
and does not confer an indefeasible right. To succeed, the JDs could have
filed an application for the rescission of the contract before the Court
which decreed the suit. Having not done so, they cannot be permitted to
raise this objection before the Executing Court. Reliance upon Prem
Jeevan vs. K.S. Venkata Raman and another, 2017(2) Civil Court Cases
1 is misplaced as in the said judgment the legal issue of the jurisdiction of
the Executing Court to accept a plea of rescission of contract in the
absence of a petition filed for the said purpose before the concerned Court
has not been examined.
12. For the aforementioned reasons, the revision petition has no
merit and is dismissed.
March 02, 2022 (SUDHIR MITTAL)
'Ankur Goyal' JUDGE
Whether speaking/reasoned Yes
Whether Reportable Yes
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