Baldev Singh vs Sukhjit Singh and Others

L.N. Mittal, J.—Defendant No. 5 Baldev Singh, by filing this revision petition under Article 227 of the Constitution of India, has assailed order dated 20.05.2013 (Annexure P-3), passed by learned trial court, thereby dismissing application (Annexure P-1) filed by defendant No. 5 - petitioner for setting aside the ex-parte proceedings ordered against him vide order dated 15.06.2010 in suit filed by respondent No. 1 - plaintiff against petitioner and proforma respondents No. 2 to 9. Defendant No. 5 alleged in his application (Annexure P-1) that he was not served in the suit and his wrong address was given in the plaint. Petitioner is resident of Moga, but he was wrongly depicted to be resident of Faridkot in the plaint. The plaintiff, in connivance with process server, has procured false report of avoiding service. A few days before filing application (Annexure P-1) dated 29.04.2013, plaintiff came to Moga and openly proclaimed that he would get possession of the land sold by defendant No. 5. Thereupon, defendant No. 5 - petitioner came to know of the pendency of the suit.

The plaintiff, by filing reply (Annexure P-2), denied the averments made in application (Annexure P-1). It was alleged that defendant No. 5 was rightly proceeded against ex-parte. No relief has been claimed in the suit against defendant No. 5. Learned trial court, vide impugned order (Annexure P-3), has dismissed the application of defendant No. 5, who has, therefore, filed this revision petition to challenge the said order.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner vehemently contended that the petitioner was never served properly in the suit, and therefore, ex-parte proceedings ordered against him are required to be set aside.

The aforesaid contention cannot be accepted in the facts and circumstances of the instant case. It is apparent from the facts and circumstances of the case that application (Annexure P-1) has been moved by defendant No. 5 at the instance of contesting defendants No. 1 and 2. Case of the plaintiff is that the suit land had already been sold by Ishar Singh - predecessor of defendants No. 3 to 5, to Waryam Singh - father of plaintiff and defendant No. 1. On the death of Waryam Singh, plaintiff became exclusive owner of the suit property in view of registered Will of Waryam Singh. However, defendants No. 1 and 2, in connivance with defendants No. 3 to 5, got executed two sale deeds dated 18.09.2009 regarding the suit property in their favour from defendants No. 3 to 5.

It is correct that in the plaint, address of respondents No. 3 to 5, who are widow and two sons of Ishar Singh, was given to be that of Faridkot. However, subsequently, the plaintiff gave the correct address of defendants No. 3 to 5 being residents of Moga and thereupon, summons were sent to them at the said address. Defendant No. 5 avoided service of summons and was then served by affixation, whereas defendant No. 3, who is mother of defendant No. 5, was reported to have refused the service. In these circumstances, defendants No. 3 to 5 were proceeded against ex-parte. Consequently, it cannot be said that defendant No. 5 was not properly served.

Oblique motive and mala fide intention of defendant No. 5 is evident from the fact that now application has been moved by defendant No. 5 only for setting aside ex-parte proceedings against him at the fag end of the trial. If this application is accepted, his brother - defendant No. 4 or mother - defendant No. 3 may again move application for setting aside ex-parte proceedings against either of them when the case again comes to the stage of final disposal. This process may be repeated by defendants No. 3 and 4 in succession. Even now, defendants No. 3 to 5 all have not moved application for setting aside ex-parte proceedings against them, although all of them are heirs of Ishar Singh being his widow and two sons.

The instant application is also hopelessly barred by limitation. Defendant No. 5 has alleged in the application that a few days ago, the plaintiff came to Moga and openly claimed that he would get possession of the land sold by defendant No. 5. It is not even the case of defendant No. 5 in the application that plaintiff came to him and made the aforesaid proclamation to him. It is beyond comprehension and completely unacceptable that after almost three years after defendants No. 3 to 5 were proceeded against ex-parte, the plaintiff would go to Moga and make such a claim. On the other hand, Moga is a big city and it is not acceptable that plaintiff made proclamation by beat of drum in the whole city regarding pendency of his suit and his claim to obtain decree for possession of the land sold by defendant No. 5. It is, thus, completely unexplained as to how defendant No. 5 suddenly came to know of the pendency of the suit almost three years after he had been proceeded against ex-parte. It thus becomes clear and manifest that defendant No. 5 had knowledge of the suit since inception and intentionally allowed himself to be proceeded against ex-parte and was watching the proceedings of the suit and moved the application when the case was at the fag end of the trial. The suit was pending for almost four years when application (Annexure P-1) was moved by defendant No. 5.

It is also worth mentioning that real contesting defendants No. 1 and 2 are already contesting the suit. No relief has allegedly been claimed against defendants No. 3 to 5, who have already executed sale deeds of the suit property in favour of defendants No. 1 and 2, although predecessor of defendants No. 3 to 5 had allegedly executed sale deed thereof in favour of father of plaintiff and defendant No. 1 long ago. Keeping in view all the circumstances, it has to be concluded that application (Annexure P-1) filed by defendant No. 5 has been rightly dismissed by the trial court. The said application is completely mala fide and devoid of merit. There is no infirmity, much less perversity, illegality or jurisdictional error in the impugned order of the trial court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition lacks any merit and is accordingly dismissed in limine.