Punjab-Haryana High Court
Tek Chand vs Jaipal And Others on 19 November, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:151327
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
235 CR-2965-2019 (O&M)
Date of Decision : 19.11.2024
Tek Chand ....Petitioner
VERSUS
Jaipal and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Sahil Sharma, Advocate for the petitioner.
Mr. Karan Kaushal, Advocate for respondent Nos.1 to 3.
ALKA SARIN, J. (Oral)
1. Present revision petition has been filed challenging the order
dated 13.02.2014 passed by the Trial Court dismissing the application for
setting aside the ex parte order dated 16.04.2008 and judgment and decree
dated 10.03.2010 as well as order dated 01.07.2016 whereby the appeal filed
against the order dated 13.02.2014 was also dismissed.
2. The brief facts relevant to the present lis are that the plaintiff-
respondent No.1 herein filed a suit for declaration with consequential relief
of partition. On 16.04.2008 the petitioner herein was proceeded against ex
parte and thereafter on 10.03.2010 an ex parte decree was passed by the
Trial Court. An application for setting aside the ex parte decree was filed on
12.02.2011. Meanwhile, the final decree was itself passed on 17.10.2016,
where the petitioner herein had appeared through counsel. The said final
decree has since attained finality as the petitioner has chosen not to
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challenge the said decree. The application under Order IX Rule 13 of the
Code of Civil Procedure, 1908 was dismissed by the Trial Court vide order
dated 13.02.2014. Aggrieved by the same an appeal was preferred which
appeal was dismissed on 01.07.2016. Thereafter, the plaintiff-respondent
No.1 (decree-holder) filed an execution petition wherein the petitioner was
represented through his counsel as is apparent from order dated 01.10.2018
(Annexure P-3). Though the appeal was dismissed on 01.07.2016, however,
the petitioner was appearing before the Executing Court. No revision was
filed till 07.05.2019.
3. Learned counsel for the petitioner would contend that the
petitioner is an uneducated person and he was informed by his counsel that
his case had been dismissed and that he was no longer required and
thereafter the counsel died. It is further the contention that the clerk of the
counsel had informed the petitioner that since the case itself was dismissed
nothing more was required to be done and hence the Court erred in
dismissing the application for setting aside the ex parte judgment and
decree.
4. Per contra learned counsel for respondent Nos.1 to 3 would
contend that the appeal was dismissed on 01.07.2016 and thereafter the
petitioner herein appeared before the Executing Court as is apparent from
the order dated 01.10.2018 (Annexure P-3) and chose not to challenge the
order dated 01.07.2016 till 07.05.2019 when the present revision petition
was filed. It is further the contention of learned counsel for respondent Nos.1
to 3 that in the interregnum the final decree has also been passed on
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17.10.2016. At the time of passing of the final decree, the petitioner was
duly represented by the counsel and has chosen not to challenge the final
decree, which had been passed.
5. I have heard learned counsel for the parties.
6. In the present case the petitioner herein was proceeded against
ex parte on 16.04.2008 and the ex parte judgment and decree was passed on
10.03.2010. The application was filed under Order IX Rule 13 CPC for
setting aside the ex parte judgment and decree on 12.02.2011, which was
dismissed by the Trial Court on 13.02.2014. The petitioner herein
participated in the proceedings for passing of the final decree as is apparent
from the decree dated 17.10.2016 (Annexure P-2). The appeal preferred by
the petitioner herein against the dismissal of the application under Order IX
Rule 13 CPC was dismissed vide order dated 01.07.2016. Despite the
petitioner appearing before the Executing Court and being well aware of the
dismissal of the appeal on 01.07.2016 he chose not to challenge the same till
07.05.2019 when the present revision petition was filed. There is no
explanation forthcoming except what the learned counsel for the petitioner
has argued that the petitioner was not aware of what was happening as he is
an illiterate person. The said argument cannot be accepted as the petitioner
had engaged a counsel before the Executing Court and was duly represented.
Infact, objections were also filed by the petitioner herein and hence it does
not lie in the mouth of the petitioner to now say that he was not aware of the
dismissal of the appeal on 01.07.2016. Further still, having participated in
the proceedings for passing of the final decree, the petitioner cannot now
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take a stand that he was never aware of what was happening and hence could
not file the revision earlier. Though no doubt there is no limitation for filing
a revision petition, however, the laxity on the part of the petitioner shown in
challenging the order dated 01.07.2016 itself shows that the entire exercise is
nothing but an endeavour to delay the proceedings. Further still, in the
proceedings under Order IX Rule 13 CPC, the petitioner had appeared and
filed his affidavit in examination-in-chief as AW1. In his statement the
petitioner clearly stated that he was regularly visiting his counsel and visited
him till a year before the recording of the statement. It was further added by
the petitioner that the counsel had died in 2009. Not an iota of evidence was
led by the petitioner besides his own self-serving statement and that of his
mother to show that the counsel had informed him that he was not required
and that the case had been dismissed. Even the clerk of the counsel was not
summoned by the petitioner to prove his case.
7. Keeping in view the totality of the circumstances as narrated
above, I do not find any merit in the present revision petition. The same
being devoid of any merit is accordingly dismissed. Pending applications, if
any, also stand disposed off.
( ALKA SARIN )
19.11.2024 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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