Punjab-Haryana High Court
Jamil Ahmed And Others vs Akhtar Hussain And Others on 25 September, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:127398
123
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-775-2023 (O&M)
Date of Decision : 25.09.2024
Jamil Ahmed & Ors ... Petitioner(s)
Versus
Akhtar Hussain & Ors ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present: Mr. Rajiv Sharma, Advocate for the petitioners.
Mr. Kulbhushan Sharma, Advocate for respondent Nos.1 to 5.
ALKA SARIN, J. (Oral)
1. The present revision petition has been preferred under Article
227 of the Constitution of India challenging the impugned order dated
18.01.2023 (Annexure P-14) whereby the appeal filed by the defendant Nos.6
to 9-petitioners herein has been dismissed by the First Appellate Court on the
ground of limitation.
2. The brief facts relevant to the present lis are that the plaintiff-
respondent Nos.1 to 5 herein filed a suit for partition which was decreed vide
judgment and decree dated 07.02.2014. Thereafter an application for passing
of the final decree was made wherein the defendant Nos.6 to 9-petitioners
herein were proceeded against ex parte and vide judgment and decree dated
31.10.2017 the final decree was passed. An application was filed by the
defendant Nos.6 to 9-petitioners herein for setting aside the ex parte order
dated 12.10.2017 as well as the ex parte judgment and decree dated
31.10.2017. In the said application the ground taken was that the defendant
Nos.6 to 9-petitioners herein had engaged Mr. V.S. Dagar, Advocate to
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represent them and that he had assured them that as and when the presence of
the defendant Nos.6 to 9-petitioners herein would be necessary, they would
be intimated. It was further the case that they were not informed about the date
and they were also not intimated about the Local Commissioner's report. The
counsel had not appeared and hence a prayer was made for setting aside the
ex parte order dated 12.10.2017 and the judgment and decree dated
31.10.2017. The said application was contested by the plaintiff-respondent
Nos.1 to 5 herein and vide order dated 07.08.2019 (Annexure P-10) the said
application was dismissed. An appeal was preferred against the said order
which was also dismissed vide order dated 13.09.2022 (Annexure P-11).
Though at various fora a plea was raised that a revision petition had been filed,
however, no revision petition was ever preferred by the defendant Nos.6 to 9-
petitioners herein and the order dated 13.09.2022 attained finality. Thereafter,
in the execution petition, objections were filed by the defendant Nos.6 to 9-
petitioners which were dismissed on 17.08.2022. A second set of objections
were filed which were also dismissed on 27.05.2022. An appeal challenging
the order dismissing the objections was also dismissed. Subsequently an
appeal was preferred by the defendant Nos.6 to 9-petitioners herein
challenging the preliminary decree dated 07.02.2014 and the final decree
dated 31.10.2017 alongwith an application for condonation of delay of 08
years and 08 months. The said appeal was dismissed being barred by
limitation vide the impugned order dated 18.01.2023 (Annexure P-14). Hence,
the present revision petition.
3. Learned counsel for the defendant Nos.6 to 9-petitioners has
vehemently contended that in para 1 of the application for condonation of
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delay in filing the appeal it was stated that the contents of the appeal be read
as part and parcel of the application and in the grounds of appeal a specific
ground was raised that a fraud had been played on the defendant Nos.6 to 9-
petitioners herein and that the plaintiff-respondent Nos.1 to 5 and proforma
defendant Nos.1 to 5 and 10 (respondent Nos.6 to 11 herein) had colluded
with each other and that the defendant Nos.6 to 9-petitioners herein had never
engaged any counsel for appearing in the case and they never signed or thumb-
marked any vakalatnama nor they signed any written statement at any point
of time. Much emphasis has been laid by the learned counsel for the
petitioners on the alleged fraud stated to have been committed by the
respondents. It is further the contention of the learned counsel that the
defendant Nos.6 to 9-petitioners herein were not aware of their rights to file
an appeal challenging the preliminary decree dated 07.02.2014 as well as the
final decree dated 31.10.2017 and hence the delay in filing the appeal.
4. Per contra, the learned counsel for respondent Nos.1 to 5 has
contended that the defendant Nos.6 to 9-petitioners herein were well aware of
their rights and had infact filed an application under Order 9 Rule 13 of the
Code of Civil Procedure, 1908 for setting aside the ex parte order dated
12.10.2017 and final decree dated 31.10.2017. The said application was
dismissed on 07.08.2019 and thereafter the appeal was also dismissed. The
said orders attained finality as the same were not challenged thereafter. Even
the objections filed by the defendant Nos.6 to 9-petitioners herein were
dismissed and the appeal dismissing the objections preferred by the defendant
Nos.6 to 9-petitioners was also dismissed. Hence, it is not a case where the
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defendant Nos.6 to 9-petitioners were not aware of their rights to file an
appeal.
5. I have heard the learned counsel for the parties.
6. In the present case, though the learned counsel for the defendant
Nos.6 to 9-petitioners has vehemently argued that a fraud had been committed
upon the defendant Nos.6 to 9-petitioners and that there was a collusion
between the plaintiff-respondent Nos.1 to 5 and proforma defendant Nos.1 to
5 and 10 (respondent Nos.6 to 11 herein), however, a perusal of the application
filed on behalf of the defendant Nos.6 to 9-petitioners herein for setting aside
the ex parte order dated 12.10.2017 as well as the ex parte judgment and
decree dated 31.10.2017 clearly reveals that the alleged fraud was never
averred in the application for setting aside the ex parte order dated 12.10.2017
as well as the ex parte judgment and decree dated 31.10.2017. Rather, the case
set up was that they were never intimated about the date by the counsel. In the
application for condonation of delay filed alongwith the appeal, the case set
up was that they were not aware that an appeal was maintainable and hence
the delay of 08 years and 08 months. The argument of the learned counsel for
the defendant Nos.6 to 9-petitioners that the defendant Nos.6 to 9-petitioners
herein were not aware of their rights is unacceptable in view of the fact that
the defendant Nos.6 to 9-petitioners were well aware of their rights inasmuch
as they were pursuing their legal remedies by filing an application under Order
9 Rule 13 CPC for setting aside the ex parte order dated 12.10.2017 as well
as the ex parte judgment and decree dated 31.10.2017 and even preferred an
appeal against the order of dismissal of the application dated 07.08.2019.
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They also filed objections before the Executing Court which were also
dismissed on 17.08.2022. The second set of objections were yet again
dismissed on 27.05.2022 and the appeal challenging the said orders was also
dismissed, hence, it cannot be said that they were never aware of their legal
rights. The argument of the learned counsel for the defendant Nos.6 to 9-
petitioners that a fraud had been committed upon the defendant Nos.6 to 9-
petitioners also deserves to be rejected in view of the fact that this was not the
case set up by the defendant Nos.6 to 9-petitioners herein in their application
filed under Order 9 Rule 13 CPC. It is only for the first time in the grounds of
the appeal that such a plea was raised.
7. In view of the above and in view of the inordinate delay of 08
years and 08 months in preferring the appeal, no fault can be found with the
impugned order dated 18.01.2023 (Annexure P-14) passed by the First
Appellate Court. The present revision petition being devoid of any merit is
accordingly dismissed. Pending applications, if any, also stand disposed off.
25.09.2024 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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