Punjab-Haryana High Court
Mohd Sharif vs Kariman And Anr on 1 July, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:082808
CR No.3336 of 2017 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.3336 of 2017 (O&M)
Reserved on: 15.04.2024
Date of Order: 01.07.2024
Mohd. Sharif
p.Petitioner
Versus
Smt. Kariman and another ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Rakesh Dhiman, Advocate
for the petitioner.
Mr. Randhir S. Hooda, Advocate
for the respondents.
ANIL KSHETARPAL, J
1. In this revision petition, the petitioner assails the correctness of
concurrent orders dated 20.12.2016 and 28.03.2017, passed by Additional
Civil Judge (Sr. Division), Mewat and District Judge, Mewat, while
dismissing his application under Order IX Rule 13 CPC to set aside the ex-
parte judgment and decree dated 21.09.2013.
2. Certain relevant facts, in brief, are required to be noticed to
understand the controversy involved.
3. The petitioner herein was defendant no.2 in a civil suit filed by
respondent no.1, for decree of declaration along with consequential relief of
permanent injunction claiming to be the owner in possession of plot
measuring 2 biswas vide registered sale deed dated 22.02.2010. The
petitioner is alleged to have purchased plot measuring 6 biswas vide
registered sale deed dated 09.09.2004, whereas respondent no.1 claims to
have purchased 2 biswas vide sale deed dated 22.02.2010. Pursuant to
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notice, the petitioner filed written statement claiming to be owner in
possession by virtue of sale deed dated 09.09.2004.
4. Defendant no.1(vendor) was proceeded against ex-parte and
issues were settled on 08.06.2011. On account of non appearance of the
petitioner and his counsel on 08.08.2012, he was proceeded against ex-patre.
The petitioner claims that he was arrested in a criminal case. Before that his
counsel has told him that he need not come present on each and every date
of hearing. Whenever his presence would be required, he would be
informed.
5. On 21.09.2013, the plaintiff's suit was ex-parte decreed while
declaring the entire sale deed dated 09.09.2004 to be null and void while
injuncting the petitioner from interfering in the peaceful possession of
respondent no.1. It is alleged that in January, 2014, respondent no.1 started
interfering in peaceful possession of the petitioner. The petitioner came to
know of the decree. On 10.01.2014, he filed an application for setting aside
ex-parte decree. As already noticed, the same was dismissed by both the
courts below.
6. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book along
with their written arguments.
7. While submitting that the petitioner was arrested in a criminal
case i.e. FIR No.382, dated 27.07.2010, the learned counsel representing the
petitioner submits that the failure to appear in the court was beyond the
petitioner's control and therefore, the courts have taken a narrow view in
dismissing the application. He submits that the applicant was not required to
examine an official from the Bar Council to prove the complaint against his
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counsel. He submits that the petitioner has proved that he was in custody on
the day as he was being produced by the Police in a criminal case on
04.04.2012, 06.08.2012, 05.11.2012. The petitioner was released on bail
only on 05.11.2012.
8. On the other hand, the learned counsel representing the
respondent has submitted that on 04.04.2012, the petitioner in a criminal
case was represented by Sh. Shoket Ali, Advocate and the petitioner was
released on bail. He submits that the petitioner has been thoroughly
negligent in prosecuting the suit.
9. This court has considered the submissions of the learned
counsel representing the parties.
10. There is no dispute that the petitioner was arrested during the
pendency of the suit in FIR No.382, dated 27.07.2010. Before arrest, the
petitioner had filed written statement after engaging the learned counsel.
Hence, the absence of the petitioner and his counsel on 08.08.2012, was on
account of reason beyond his control. The petitioner claims to have filed
complaint against his counsel. Moreover, there is no reason why the
petitioner will not contest the case particularly when he has already
purchased the property on 09.09.2004, whereas the respondent no.1 has
purchased the property in 2010. Moreover, the sale deed in favour of the
petitioner has been set aside which is beyond the prayer made in the suit.
Respondent no.1 only claims 2 biswas of plot, whereas the petitioner has
purchased 6 biswas.
11. The First Appellate Court has erred in observing that the suit
was not decided in a teering hurry and the parties and the property is located
in the same village, therefore, the petitioner was supposed to know the
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progress of the case. The assumption drawn by the court is without any
basis. Furthermore, the court has erred in observing that the petitioner has
failed to examine anybody from Bar Council. In fact, a complaint to the Bar
Council is not necessary against the advocate for filing an application under
Order IX Rule 13 CPC. The courts are expected to take a pragmatic view of
the entire matter while deciding such applications. A meritorious case may
have been decided against the applicant resulting in injustice. Moreover, the
efforts of the court should be to permit the parties to contest the case on
merits instead of deciding the same in defaults.
12. Keeping in view the aforesaid facts and discussion, the
impugned orders passed on 20.12.2016 and 28.03.2017, are set aside. The
ex-parte order dated 08.08.2012 as well as decree dated 21.09.2013, passed
ex-parte by the trial court are also set aside.
13. The parties through their counsel are directed to appear before
the trial court on 23.07.2024, which shall proceed to decide the suit afresh
after grating opportunity to the petitioner to contest the case. The position of
the suit is restored as on 08.08.2012.
14. With these observations, the revision petition is allowed.
15. All the pending miscellaneous applications, if any, are also
disposed of.
1st July, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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