Punjab-Haryana High Court
(O&M)Chairman & Managing ... vs Ved Parkash & Ors on 11 April, 2023
Neutral Citation No:=2023:PHHC:048799
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CR-5740-2005(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-5740-2005(O&M)
Date of decision:-11.4.2023
Chairman & Managing Director Peerless General Finance & Investment
Company Ltd. and another
...Petitioners
Versus
Ved Parkash and others
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.Tara Chand Dhanwal, Advocate
for the petitioners.
****
H.S. MADAAN, J.
1. Under challenge in this revision petition is the order dated
20.8.2004 passed by Civil Judge (Sr.Divn.), Kaithal vide which an
application filed by defendants No.1 to 3, seeking setting aside of ex-parte
judgment and decree dated 22.3.1999 in Civil Suit No.609 of 1998 titled
as 'Ved Parkash Versus Chairman' had been dismissed as well as order
dated 31.8.2005 passed by Additional District Judge, Kaithal vide which
appeal against the said order had been rejected.
2. Briefly stated, facts of the case are that plaintiff Ved Parkash
had brought a suit against defendants Chairman and Managing Director,
Peerless General Finance and Investment Co. Ltd., Assistant
Administratory Officer, Peerless General Finance and Investment Co.
Ltd., Kurukshetra, Peerless General Finance and Investment Co. through
the Managing Director, Calcutta and Karam Singh, an authorized agent of
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defendant No.1 contending his mother Smt. Shanti Devi since dead had
deposited Rs.2,502/- vide receipt dated 4.3.1994 bearing agents Code
No.160/421/572 and office Code No.57 through defendant No.4 - Karam
Singh, who happened to be an authorized agent of defendants in a ten
years scheme for an endowment sum of Rs.70,000/- with interest;
unfortunately Shanti Devi expired on 4.8.1994 due to snake bite and an
FIR in that regard was also got registered with Police Station Siwan; the
accidental death of Smt.Shanti Devi was intimated to defendant No.4 -
Karam Singh, authorized agent of remaining defendants but amount of
endowment was not released, giving rise to a cause of action to the
plaintiffs to bring the suit for grant of mandatory injunction against the
defendants.
3. On getting notice, Sh.S.K. Sharma, Advocate had put in
appearance on behalf of defendant No.2, however, subsequently he
absented from the Court and resultantly defendant No.2 was proceeded
against ex-parte. Defendant No.4 had also put in appearance but he failed
to pursue the case and was also proceeded against ex-parte. Defendants
No.1 and 3 had not appeared despite service. Therefore, they too were
proceeded against ex-parte.
4. After recording evidence, vide judgment dated 22.3.1999, the
suit of the plaintiff was decreed issuing a mandatory injunction to the
defendants to release amount of Rs.70,000/- as prayed for by the plaintiff.
It was observed that the plaintiff shall be entitled to interest at the rate of
12% per annum from the date of institution of the suit till its realization.
5. The defendants No.1 and 3 had then filed an application for
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setting aside of ex-parte judgment and decree contending that they came
to know about the same on 19.11.1999 when they received copy of notice
under Order 21 Rule 66 CPC from the Executing Court; the
applicants/defendants had been proceeded against ex-parte for the reason
that notices had been issued to them as per registered AD post, which had
not been received back within one month and drawing presumption that
defendants would have received the same, ex-parte order was passed
against such applicants/defendants. According to the applicants, they had
not received any registered letter and no alternate service in the form of
munadi and publication was effected.
6. Notice of that application was given to respondent/plaintiff,
who put in appearance and contested the application raising various legal
objections, on merits contending that the applicants/defendants had
appeared in this case and subsequently they absented; they had not filed
the written statement despite availing of numerous opportunities, therefore
they could not take advantage of their own wrong; further the application
filed was quite belated. The respondent/plaintiff prayed for dismissal of
the application.
7. On the pleadings of the parties, following issues were
framed:
1. Whether the exparte judgment and decree dated 22.3.1999 is liable
to be set aside on the grounds mentioned in the petition? OPA
2. Whether the application is not maintainable in view of pre-
objection No.1? OPR.
3. Relief.
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8. During the course of evidence of applicants, they examined
Sh.Sunil Kumar, Assistant Marketing Officer, Peerless as AW1.
In rebuttal, the respondent/plaintiff tendered in evidence
photocopy of acknowledgement as Ex.R1.
9. After hearing arguments, the trial Court decided issue No.1
against the applicants/defendants and in favour of the respondent/plaintiff,
issue No.2 was decided against the respondent/plaintiff. Resultantly, vide
order dated 20.8.2004, the application was dismissed.
10. Feeling aggrieved, such applicants/defendants had preferred
an appeal before District Judge, Kaithal, which was assigned to
Additional District Judge, Kaithal, who vide judgment dated 31.8.2005
had dismissed the same, leaving the defendants No.1 and 3 aggrieved,
who have preferred the present revision petition, notice of which had been
issued to respondent No.1 but such respondent has not appeared despite
service.
11. I have heard learned counsel for the petitioners besides going
through the record.
12. Both the Courts below on proper appraisal and appreciation
of evidence and correct interpretation of law have come to the same
conclusion that applicants/defendants No.1 and 3 were properly served
but despite that they did not put in appearance in the Court and were
rightly proceeded against ex-parte. While coming to the conclusion, the
Courts below have taken into view the fact that Chairman and Managing
Director Peerless General Finance and Investment Co.Ltd. was impleaded
as defendant No.1 and Peerless General Finance and Investment Co.
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through the Managing Director C/o Peerless Bhawan was impleaded as
defendant No.3; Karam Singh, authorized agent as defendant No.4.
Defendant No.2 Assistant Administratory Officer Peerless General
Finance and Investment Co. Ltd. Kurukshetra had appeared through
counsel but subsequently absented. Defendant No.2 is none-else but an
officer in employment of defendants No.1 and 3. It does not appeal to
reason that defendant No.2 and 4 would not have informed such
defendants No.1 and 3 regarding the civil suit in question filed by plaintiff
Ved Parkash pending before Civil Judge (Sr.Divn.), Kaithal. Even
otherwise, presumption under Order 5 Rule 19-A CPC was properly
drawn by the Court and another fact which was considered was that
respondents had relied upon copy of acknowledgment Ex.R1 sent to
defendants No.1 and 3 and it was received back duly signed and sealed.
The version of the applicants/defendants that they were not duly served
and came to know about the civil suit on getting notice of application
under Order 21 Rule 66 CPC from the Executing Court was considered
and rejected.
13. I find myself in agreement with the Courts below in reaching
the conclusion that defendants No.1 and 3 had intentionally not put in
appearance in the Court despite being duly served having knowledge of
the pendency of the civil suit and they were rightly proceeded against ex-
parte. There is no ground to set the clock back and set aside the ex-parte
order and judgment so as to have a de novo trial, in the process allowing
the applicants/defendants to prolong the proceedings, which have already
got ext ended for several years.
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14. The impugned judgment/order passed by the Courts below
are quite detailed and well reasoned and those do not suffer from any
illegality or infirmity and are not having any element of arbitrariness or
perversity. The revisional jurisdiction of this Court is quite limited and
considering the facts and circumstances of the case, there is no reason to
interfere with the impugned judgment/order by way of exercising the
revisional jurisdiction.
15. Finding no merit in the revision petition, the same stands
dismissed.
The interim order dated 28.3.2006 passed by this Court
staying further proceedings before the Executing Court stands withdrawn.
Since the main revision petition has been dismissed, the
miscellaneous application(s), if any, stand disposed of accordingly.
11.4.2023 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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