Punjab-Haryana High Court
Smt. Santosh And Another vs M/S S.J. Towers And Developers Private ... on 5 December, 2023
Neutral Citation No:=2023:PHHC:156649
2023:PHHC:156649
CR-7096-2017 (O&M) & CR-7099-2017 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on:- 17.10.2023
Pronounced on:- 05.12.2023
(1) CR-7096-2017 (O&M)
Smt. Santosh and another
...Petitioners
Versus
Vijay Pal and others
...Respondents
(2) CR-7099-2017 (O&M)
Smt. Santosh and another
... Petitioners
Versus
M/s S.J. Towers and Developers Pvt. Limited and others
...Respondents
CORAM:- HON'BLE MS. JUSTICE AMARJOT BHATTI
Present:- Mr. Sunil Chadha, Senior Advocate with
Ms. Devyani Sharma, Advocate
for the petitioners.
Mr. Aashish Chopra, Senior Advocate with
Ms. Nitika Sharma, Advocate
for respondent No. 1 in CR-7096-2017 and
for respondent No. 9 in CR-7099-2017.
Mr. Amit Jain, Senior Advocate with
Mr. Anupam Mathur, Advocate
for respondent Nos. 1 to 4 in CR-7099-2017.
*****
AMARJOT BHATTI, J.
1. The petitioners/plaintiffs Santosh and Sushma alias Rekha
have filed two Civil Revisions under Article 227 of the Constitution of
India for setting aside the common judgment dated 30.08.2017 (Annexure
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P-12) passed by the Court of learned Additional District Judge, Gurugram
in Civil Appeal No. 66 of 11.05.2015/10.08.2015 (M/s S.J. Towers and
Developers Private Limited and others versus Smt. Santosh and another)
and in Civil Appeal No. 86 of 15.05.2015/06.07.2017 (Vijay Pal versus
Smt. Santosh and others) and to restore the common order dated
07.04.2015 (Annexure P-9) passed by the Court of learned Civil Judge
(Junior Division), Gurgaon, whereby the application filed under Order 9
Rule 13 read with Section 151 C.P.C. for setting aside exparte judgment
and decree dated 07.03.2006 filed by applicant/defendant No. 8 Vijay Pal
and application under Order 9 Rule 13 read with Section 151 C.P.C. filed
by applicants/defendants No. 5 to 7 and 9 were rightly dismissed. Both
these civil revisions have arisen out of the same judgment dated 30.08.2017
(Annexure P-12) and order dated 07.04.2015 (Annexure P-9), therefore, the
civil revisions are taken up together for disposal.
2. The learned Senior Counsel for the petitioners argued that the
learned Additional District Judge, Gurgaon has erroneously allowed the
appeal of defendants No. 5 to 7 and 9 on the one hand and
respondent/defendant No. 8 on the other hand. In-fact, the facts and
circumstances of the case were rightly considered by learned Civil Judge
(Junior Division), Gurgaon while dismissing the application under Order 9
Rule 13 C.P.C. by passing well reasoned order dated 07.04.2015, Annexure
P-9. The petitioners/plaintiffs had filed Civil Suit No. 141 dated
10.03.1999/07.09.1998 seeking declaration that they are absolute owners in
possession of the suit land and challenged mutation No. 784 sanctioned on
24.12.1994 and subsequent sale deeds dated 19.12.1994 and 20.04.1995
and the mutations sanctioned on that basis as illegal, null and void, nonest,
void ab initio and the same did not confer any right, title or interest on the
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defendants along with the relief of permanent injunction restraining the
defendants from creating any charge over the property by alienating or
transferring the same or changing the nature of property. The copy of said
plaint dated 07.09.1998 is Annexure P-1. The defendants No. 1 to 4 i.e.
respondents No. 6 to 9 in CR-7096-2017 appeared through their counsel
Sh. Anil Grover, Advocate and ultimately the suit was decided vide
judgment and decree dated 07.03.2006. The copy of judgment and decree
dated 07.03.2006 is Annexure P-2. Sh. Anil Grover, Advocate filed
application dated 07.12.2000 seeking one opportunity to file written
statement on behalf of defendants No. 5 to 7 and 9. The copy of said
application is Annexure P-4. The copy of Memo of Appearance as well as
vakalatnama submitted by Sh. Anil Grover, Advocate as well as Sh. Anil
Grover, Advocate gave vakalatnama in favour of Sh. G.L. Malik,
Advocate, which are Annexure P-5. The learned counsel for defendants No.
5 to 7 and 9 were granted several opportunities to file their written
statement. The cost was also imposed and ultimately their defence was
struck off vide order dated 10.11.2001.
The defendant No. 8 Vijay Pal had purchased 1/8th share in
the suit property who remained unserved by way of ordinary process as
well as through registered post. Thereafter, application dated 26.05.2004
was filed to effect his service by way of substitute means, which is
Annexure P-6. As per order dated 28.05.2004, the defendant No. 8 was
ordered to be served through publication in the newspaper "Bharat Desh
Hamara" for 20.09.2004 on filing of publication charges and process fee.
The publication was duly effected and thereafter, vide order dated
22.01.2005, the defendant No. 8 Vijay Pal was also proceeded against
exparte. The zimni orders for the aforesaid period are placed on record as
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Annexure P-3. The suit filed by the plaintiffs was ultimately decreed vide
judgment and decree dated 07.03.2006, Annexure P-2. Thereafter, the
petitioners through their lawful General Power of Attorney Holder Rajesh
Monga sold the property in favour of Priya Monga vide registered sale
deed dated 06.07.2006. On 08.01.2007, the defendants No. 5 to 7 and 9
filed application under Order 9 Rule 13 C.P.C. read with Section 151
C.P.C. for setting aside the aforesaid judgment and decree dated
07.03.2006 (Annexure P-2). The copy of application dated 08.01.2007 is
Annexure P-7. The reply filed by the petitioners is Annexure P-8. Vijay
Pal, defendant No. 8 filed separate application for setting aside the
judgment and decree dated 07.03.2006 (Annexure P-2). The true copy of
the application dated 23.09.2009 is Annexure P-10. The reply dated
09.10.2009 is Annexure P-11. Both the applications were disposed of by
passing common order dated 07.04.2015, Annexure P-9. Thereafter, two
separate appeals were filed against the aforesaid order dated 07.04.2015,
Annexure P-9 i.e. one Civil Appeal No. 66 dated 11.05.2015/10.08.2015
filed at the instance of defendants No. 5 to 7 and 9 and another Civil
Appeal No. 86 dated 15.05.2015/06.07.2017 filed at the instance of
defendant No. 8 Vijay Pal. These appeals were disposed of by passing
impugned judgment dated 30.08.2017, which is Annexure P-12. The
appeals were wrongly accepted by restoring the suit of the
petitioners/plaintiffs to its original number with the direction to the
defendants to file their respective written statements. Now, two separate
civil revisions have been filed against the impugned judgment dated
30.08.2017, Annexure P-12.
3. The learned Senior Counsel for the petitioners pointed out that
Vijay Pal - respondent/defendant No. 8 wrongly claimed that he was not
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aware of the impugned judgment and decree dated 07.03.2006, Annexure
P-2 and he came to know about this fact when he received notice in the
application filed by defendants No. 5 to 7 and 9. It is pointed out that the
address mentioned in the plaint as well as in the application Annexure P-7
is the same, therefore, it cannot be said that he was not served on the
correct address. Despite repeated notices, he did not appear and ultimately
he was ordered to be served through publication. The conduct of defendant
No. 8 clearly shows that he was having full knowledge about the
proceedings of the suit Annexure P-1 and he did not choose to appear
deliberately. The learned Additional District Judge, Gurgaon has wrongly
concluded that the newspaper "Bharat Desh Hamara" had no circulation in
the area and it is further wrongly concluded that there was a long gap in the
order issuing notice by way of publication and the date when the notice
was actually published in the newspaper for 22.01.2005. The justification
given by the learned Additional District Judge, Gurgaon regarding passing
of impugned judgment qua respondent No. 8 Vijay Pal is not on sound
footing. The dates were given as the publication fee was not deposited.
Thereafter, the publication fee was deposited and notice was issued through
publication for 22.01.2005. The reasoning given by learned Civil Judge
(Junior Division), Gurgaon while passing order dated 07.04.2015,
Annexure P-9 qua respondent No. 8 Vijay Pal is fully justified and the
same does not require any interference.
The learned Senior Counsel for the petitioners/plaintiffs
further raised the issue that the defendants No. 5 to 7 and 9 were duly
represented by their counsel. They availed numerous opportunities to file
their written statement and when their counsel failed, their defence was
struck off. Therefore, the stand taken by these defendants that they were
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not aware of the proceedings of the case does not hold any ground. The
defendants No. 5 to 7 and 9 have their separate legal department in the
company to handle such matters. Therefore, they cannot plead ignorance. It
is wrongly concluded that Sh. Anil Grover, Advocate wrongly appointed
Sh. G.L. Malik, Advocate to pursue their case. The perusal of Power of
Attorney given to Anil Grover, Advocate shows that there is a specific
clause that he could hire another Advocate to pursue the matter. Therefore,
neither Anil Grover, Advocate nor G.L. Malik, Advocate have done
anything wrong against the rules. These facts were rightly considered by
the trial Court while passing the order dated 07.04.2015, Annexure P-9 and
their application for setting aside the judgment and decree dated
07.03.2006 (Annexure P-2) was rightly declined. The learned Senior
Counsel for the petitioners has relied upon the authority cited in 2011(3)
SCC 545, Supreme Court of India, case titled "Parimal versus Veena @
Bharti", referring paras No. 7, 8 and 12, which runs as under :-
"7. Order 9, Rule 13 CPC:
The aforesaid provisions read as under:
"Setting aside decree ex-parte against defendant In any case in
which a decree is passed ex-parte against a defendant, he may
apply to the Court by which the decree was passed for an order to
set it aside; and if he satisfies the Court that the summons was not
duly served, or that he was prevented by any sufficient cause from
appearing when the suit was called on for hearing, the Court shall
make an order setting aside the decree as against him upon such
terms as to costs, payment into Court or otherwise as it thinks fit,
and shall appoint a day for proceeding with the suit;
xx xx xx
Provided further that no Court shall set aside a decree passed ex-
parte merely on the ground that there has been an irregularity in
the service of summons, if it is satisfied that the defendant had
notice of the date of hearing and had sufficient time to appear and
answer the plaintiff's claim.
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xx xx xx" (Emphasis added)
8. It is evident from the above that an ex-parte decree against a
defendant has to be set aside if the party satisfies the Court that
summons had not been duly served or he was prevented by
sufficient cause from appearing when the suit was called on for
hearing. However, the court shall not set aside the said decree on
mere irregularity in the service of summons or in a case where the
defendant had notice of the date and sufficient time to appear in
the court.
The legislature in its wisdom, made the second proviso, mandatory
in nature. Thus, it is not permissible for the court to allow the
application in utter disregard of the terms and conditions
incorporated in the second proviso herein.
12. In order to determine the application under Order 9, Rule 13
Civil Procedure Code, the test has to be applied is whether the
defendant honestly and sincerely intended to remain present when
the suit was called on for hearing and did his best to do so.
Sufficient cause is thus the cause for which the defendant could not
be blamed for his absence. Therefore, the applicant must approach
the court with a reasonable defence. Sufficient cause is a question
of fact and the court has to exercise its discretion in the varied and
special circumstances in the case at hand. There cannot be a strait-
jacket formula of universal application."
The learned Additional District Judge, Gurgaon while passing
judgment dated 30.08.2017, Annexure P-12 wrongly accepted the appeal
without considering the fact that the contesting respondents/defendants
were bound to file their respective applications within the period of
limitation for setting aside the judgment and decree dated 07.03.2006,
Annexure P-2. The mandatory provisions under Order 9 Rule 13 C.P.C.
have been totally ignored. Under these circumstances, it is prayed that
impugned judgment dated 30.08.2017, Annexure P-12 passed by learned
Additional District Judge, Gurgaon may kindly be set aside by restoring the
order dated 07.04.2015, Annexure P-9 passed by the learned Court of Civil
Judge (Junior Division), Gurgaon.
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4. The learned Senior Counsel representing the
respondent/defendant No. 8 Vijay Pal pointed out that Vijay Pal was never
served in this case. There is long gap between the date of order for
publication and the date when the publication was actually effected. The
defendant No. 8 never got a chance to contest the suit filed by the
plaintiffs. There was no proper service. This fact was rightly considered by
the learned Additional District Judge, Gurgaon and accordingly, the
judgment dated 07.03.2006, Annexure P-2 was rightly set aside giving
opportunity to the respondent/defendant No. 8 to file his written statement
and to contest the case. Therefore, the impugned order dated 30.08.2017,
Annexure P-12 does not require any interference.
The learned Senior Counsel representing the
respondents/defendants No. 5 to 7 and 9 raised the issue that they were not
properly represented before the trial Court. They had hired Sh. Anil
Grover, Advocate on their behalf who stopped appearing before the trial
Court without any intimation to the respondents/defendants No. 5 to 7 and
9. He, on his own, appointed Sh. G.L. Malik, Advocate who appeared once
and thereafter did not comply the orders of the Court, as a result, their
defence was struck off. The learned Senior Counsel has relied upon the
authority cited in 1998(1) R.C.R.(Civil) 277, Supreme Court of India, case
titled "Malkiat Singh versus Joginder Singh", where in that case while
dealing with the provisions of Order 9 Rule 13 Civil Procedure Code, 1908
for setting aside exparte decree, it was observed in para No. 4 as under :-
"4... There is no denying the fact that the appellants had engaged a
counsel to defend them in the civil suit. The counsel for the
appellants pleaded "no instructions" but the court did not issue any
notice to the appellants, who were admittedly not present on the
date when their counsel reported no instructions in the court. It is
nobody's case that the counsel informed them after he had reported
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no instructions to the court. The appellants only came to know
about the order dated 18.11.1991 and the ex-parte decree dated
8.2.1992 when they approached their counsel on 6.6.1992. It was
within four days thereafter that the appellants filed an application
under Order 9, Rule 13, C.P.C. for setting aside the order dated
18.11.1991 and the decree dated 8.12.1992."
There was complete negligence on the part of their Advocates
and therefore, they did not get proper chance to present their case. It is in
the interest of justice that the matter is disposed of on merits after giving
due opportunity to the parties to present their respective cases. Therefore,
the impugned order dated 30.08.2017, Annexure P-12 for setting aside the
order dated 07.04.2015, Annexure P-9 does not require any interference
and the civil revisions preferred by the petitioners/plaintiffs may kindly be
dismissed.
5. I have considered the arguments advanced by the learned
Senior Counsels contesting the present civil revisions and have gone
through the record carefully. As per the facts of the present case, Smt.
Santosh and Smt. Sushma alias Rekha filed suit for declaration and
possession with consequential relief of permanent injunction against the
defendants by filing this suit on 07.09.1998. The copy of plaint is
Annexure P-1. The aforesaid civil suit No. 141 of 10.03.1999/07.09.1998
was ultimately decreed vide judgment and decree dated 07.03.2006, which
is Annexure P-2. After the passing of aforesaid judgment and decree, the
application for setting aside the same under Order 9 Rule 13 C.P.C. was
filed for the first time on 08.01.2007 by defendants No. 5 to 7 and 9. The
copy of application is Annexure P-7 and the reply to this application is
Annexure P-8. Similarly, the respondent/defendant No. 8 Vijay Pal filed
separate application dated 23.09.2009 under Order 9 Rule 13 read with
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Section 151 C.P.C., Annexure P-10 and the reply to this application dated
09.10.2009 is Annexure P-11. These applications were declined by the trial
Court vide order dated 07.04.2015, which is Annexure P-9. It is matter of
record that the aforesaid order dated 07.04.2015 was challenged by filing
separate civil appeals which were accepted vide common judgment dated
30.08.2017, Annexure P-12 and feeling aggrieved of this judgment, the
aforesaid revisions have been preferred by Santosh and Sushma alias
Rekha, petitioners/plaintiffs.
Firstly, I will deal with the application filed by Vijay Pal,
respondent/defendant No. 8 under Order 9 Rule 13 read with Section 151
C.P.C. for setting aside the judgment and decree dated 07.03.2006,
Annexure P-2. It is the case of respondent/defendant No. 8 Vijay Pal that
he was never served in this case personally, therefore, he did not get a
chance to contest the suit filed by the petitioners/plaintiffs. The application
was filed after a gap of three years. He claimed that he came to know about
the judgment and decree dated 07.03.2006, Annexure P-2 when he received
notice in the application filed by respondents/defendants No. 5 to 7 and 9,
which is Annexure P-7. The learned counsel for the petitioners/plaintiffs
rightly pointed out that in the plaint, Annexure P-1, the address of Vijay
Pal was mentioned as son of Suraj Singh, r/o House No. 83 Old Faridabad
(Haryana), whereas, in the application filed by applicants/defendants No. 5
to 7 and 9 same address was mentioned. Therefore, it cannot be said that
the present petitioners/plaintiffs had given incorrect address of the
respondent/defendant No. 8 Vijay Pal, as a result, he was not served. Now,
it is to be seen what efforts were made to procure the service of
respondent/defendant No. 8 Vijay Pal. The learned counsel for the
petitioners/plaintiffs have placed on record the zimni orders, Annexure P-3,
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which shows that process was sent to effect the service of
respondent/defendant No. 8 several times but it was either received back
unserved or not received back. There are zimni orders starting from
12.09.1998 to 28.05.2004, when the process was received back unserved
time and again and ultimately application was filed under Order 5 Rule 20
C.P.C. for service of Vijay Pal by way of substitute means. Therefore, the
case remained pending for years together to procure the service of
respondent/defendant No. 8. It is not the case that publication was issued to
procure his service in a hasty manner. Order 5 Rule 20(1-A) C.P.C. deals
with service by substitute means by way of publication in daily newspaper
circulated in the locality. There is nothing on record to show that the
newspaper which was selected by the trial Court was not in the approved
list of newspapers in which the publication was issued. After a long gap of
three years, the respondent/defendant No. 8 Vijay Pal appeared on his own
and filed application for setting aside the judgment and decree dated
07.03.2006 (Annexure P-2). The explanation given by him that he came to
know about the aforesaid judgment and decree when application was filed
by the respondents/defendants No. 5 to 7 and 9 does not hold ground as the
address mentioned in the application as well as in the plaint was the same.
The conduct of the respondent/defendant No. 8 Vijay Pal indicates that he
deliberately kept away from the aforesaid litigation and after the passing of
judgment and decree dated 07.03.2006 (Annexure P-2), he again remained
silent for about three years and thereafter, filed the application. In the light
of aforesaid factual position, I am not convinced with the reasoning given
by learned Additional District Judge, Gurgaon for setting aside the order
dated 07.04.2015, Annexure P-9 qua the respondent/defendant No. 8 Vijay
Pal.
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6. The respondents/defendants No. 5 to 7 and 9 filed application
for setting aside exparte judgment and decree dated 07.03.2006 (Annexure
P-2) by filing application on 08.01.2007, which is Annexure P-7, after
period of about 10 months from the passing of judgment. So far as the
respondents/defendants No. 5 to 7 and 9 are concerned, they were duly
served in this case and Sh. Anil Grover, Advocate filed his Memorandum
of Appearance as per order dated 07.06.1999 and thereafter, filed his
vakalatnama on 12.11.1999. Thereafter, the case was adjourned several
times for filing of written statement. Even cost was imposed and ultimately
the defence was struck off as per zimni order dated 10.11.2001 after a
period of more than two years. The suit filed by the petitioners/plaintiffs
was decreed as per judgment and decree dated 07.03.2006 (Annexure P-2).
During this period, the respondents/defendants No. 5 to 7 and 9 never
approached any forum to set aside the order dated 10.11.2001 and after a
gap of about 10 months from the passing of judgment and decree, the
application was filed under Order 9 Rule 13 C.P.C., Annexure P-7. The
learned counsel for the respondents/defendants No. 5 to 7 and 9 took the
stand that they had hired Sh. Anil Grover, Advocate. He left the practice
and gave Power of Attorney to Sh. G.L. Malik, Advocate, whose presence
was marked on few dates and thereafter, he also stopped appearing. The
copy of Power of Attorney in favour of Sh. Anil Grover, Advocate is
Annexure P-5 and in this Power of Attorney, there is a specific clause that
he was competent to appoint, instruct any other legal practitioner
authorizing him to exercise the power and authorities hereby conferred
upon the Advocate whenever he may think fit to do so and to sign the
Power of Attorney on my/our behalf. On the basis of this clause, Sh. Anil
Grover, Advocate appointed Sh. G.L. Malik, Advocate to appear in the
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case. Therefore, it cannot be said that either Sh. Anil Grover, Advocate or
Sh. G.L. Malik, Advocate did any act against the rules. It is also
appreciated by the learned Civil Judge (Junior Division), Gurgaon that the
respondents/defendants No. 5 to 7 and 9 never opted to proceed against
these Advocates for any professional misconduct. The learned Civil Judge
(Junior Division), Gurgaon further appreciated the fact that the
respondents/defendants No. 5 to 7 and 9 are companies having special legal
cells dealing with their litigation. Therefore, they cannot plead ignorance
regarding the progress of their case.
The aforesaid facts clearly indicate that the
respondent/defendant No. 8 as well as respondents/defendants No. 5 to 7
and 9 kept away when the proceedings were going on in Civil Suit No. 141
of 10.03.1999/07.09.1998 which were ultimately decided on 07.03.2006,
after a period of more than 7 years. It was for the aforesaid
respondents/defendants to prove sufficient cause for setting aside the
exparte judgment and decree dated 07.03.2006, Annexure P-2 passed
against them. The respondent/defendant No. 8 as well as
respondents/defendants No. 5 to 7 and 9 cannot be permitted to misuse the
process of law to delay the legal proceedings. In view of my above
discussion, the order dated 07.04.2015, Annexure P-9 passed by learned
Civil Judge (Junior Division), Gurgaon is on the sound footing and the
same does not require any interference.
Therefore, both the Civil Revisions bearing Nos. 7096 of 2017
and 7099 of 2017 preferred by the petitioners/plaintiffs are accepted and
the impugned common judgment dated 30.08.2017, Annexure P-12 passed
by learned Additional District Judge, Gurgaon in Civil Appeal No. 66 of
11.05.2015/10.08.2015, titled 'M/s S.J. Towers and Developers Private
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Limited and others versus Smt. Santosh and another' and in Civil Appeal
No. 86 of 15.05.2015/06.07.2017, titled 'Vijay Pal versus Smt. Santosh and
others', is set aside being without justification and the order dated
07.04.2015, Annexure P-9 passed by learned Civil Judge (Junior Division),
Gurgaon is restored. The Civil Revisions are accordingly, allowed.
Pending application(s), if any, in both the Civil Revisions
shall stands disposed of, accordingly.
Photocopy of this order be placed on the file of another
connected case.
05.12.2023 (AMARJOT BHATTI)
lalit JUDGE
Whether speaking/reasoned: Yes
Whether reportable: Yes/No
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