Dev Bhushan Gupta vs Satnarayan Bansal and Others

L.N. Mittal, J.

CM No. 8727-CII of 2012.

Allowed as prayed for.

CR No. 2041 of 2012.

Aggrieved by judgment dated 30.01.2012 (Annexure P-5) passed by Additional District Judge, Gurgaon, plaintiff Dev Bhushan Gupta has filed this revision petition under Article 227 of the Constitution of India to challenge the said judgment. Plaintiff-petitioner filed suit in the year 1990 against proforma respondents No. 3 to 7 as defendants No. 1 to 5. During pendency of the said suit, respondents No. 1 and 2 herein were impleaded as defendants No. 6 and 7 vide order dated 06.05.1996. They were proceeded ex parte vide order dated 09.12.1996. Ultimately the said suit was decreed ex parte vide judgment and decree dated 12.04.1999. Separate applications moved by defendant No. 1 and by defendants No. 2 to 4 for setting aside the ex.parte judgment and decree dated 12.04.1999 were dismissed by common order dated 19.11.2009. IDBI Bank Limited also filed application for being impleaded as party to the suit and for setting aside the ex parte judgment and decree, being mortgagee of the suit property. However, the said application was also dismissed.

Respondents No. 1 and 2 herein (defendants No. 6 and 7 in the suit) also filed application on 15.09.2001 under Order 9 Rule 13 of the CPC for setting aside the ex parte judgment and decree dated 12.04.1999 alleging that they were never served in the suit. Their address in the suit was also not correct. The had no knowledge of the pendency of the suit.

Plaintiff-petitioner resisted the application. It was alleged that defendants No. 6 and 7 were rightly proceeded ex parte in the suit. They were aware of order dated 09.12.1996 (whereby they were proceeded ex parte) as well as of ex parte judgment and decree dated 12.04.1999. The were also personally served in the suit Mr. Neeraj Mahashwari, Advocate and Mr. J.K. Maheshwari also appeared on behalf of defendants No. 6 and 7 in the suit by filing memo of appearance, but later on, none appeared for defendants No. 6 and 7 on 09.12.1996 and therefore, they were rightly proceeded ex parte. Defendants No. 6 and 7 were residing at the address given in the plaint at the time of service of summons in the suit. Various other please were also raised.

Learned Additional Civil Judge (Senior Division) Gurgaon vide judgment dated 30.10.2010 Annexure P-3 dismissed the application of defendants No. 6 and 7 for setting aside ex parte judgment and decree dated 12.04.1999. However first appeal preferred by defendants No. 6 and 7 against judgment Annexure P-3 has been allowed by learned Additional District Judge, Gurgaon vide impugned judgment dated 30.01.2012 Annexure P-5 and thereby application filed by defendants No. 6 and 7 has been allowed and order dated 09.12.1996 whereby defendants were proceeded ex parte and consequent ex parte judgment and decree dated 12.04.1999 have been set aside. Feeling aggrieved, plaintiff has filed this revision petition.

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

Counsel for the petitioner very emphatically and repeatedly contended that defendants No. 6 and 7 filed their application Annexure P-1 for setting aside ex parte judgment and decree through Mr. J. K. Maheshwari, Advocate and during pendency of the suit, memo of appearance had been filed by Mr. J.K. Maheshwari, Advocate and Mr. Neeraj Maheshwari, Advocate on behalf of defendants No. 6 and 7 and Mr. Neeraj Maheshwari, Advocate had appeared on behalf of defendants No. 6 and 7 in the suit on 30.10.1996 and, therefore, there is no ground to set aside ex parte judgment and decree because thereafter defendants No. 6 and 7 intentionally failed to appear in the suit and were rightly proceeded ex parte.

I have carefully considered the aforesaid contention which on first blush appears to be very attractive. However, on careful consideration of the entire material on record, the aforesaid contention cannot be accepted. Lower appellate Court has specifically observed that in the record of the trial Court, there is no document/summons indicating service of Court notice/summons on defendants No. 6 and 7 in the suit. It is thus manifest that defendants No. 6 and 7 were not served with summons in the suit. This by itself is sufficient to set aside ex parte Judgment and decree dated 12.04.1999 against defendants No. 6 and 7.

No doubt, Mr. Neeraj Maheshwari, Advocate appeared on behalf of defendants No. 6 and 7 in the trial Court on 30.10.1996 by filing memo of appearance. However, stand of defendants No. 6 and 7 is that they had never authorized Mr. Neeraj Maheshwari, Advocate to put in appearance in the suit on their behalf because defendants No. 6 and 7 were not served with summons and were not even aware of the pendency of the suit This stand of the defendants No. 6 and 7 has to be accepted because they did not give any vakalatnama in favour of Mr. Neeraj Maheshwari, Advocate to appear in the suit on 30.10.1996 or on any other date. No doubt, even without vakalatnama, Advocate can put in appearance by filing memo of appearance if duly instructed by the party. However, in the instant case, defendants No. 6 and 7 in support of their version have examined Mr. Neeraj Maheshwari, advocate. He has stated that he had not been instructed by defendants No. 6 and 7 to appear on their behalf in the suit. On the other hand, according to Mr. Neeraj Maheshwari, Advocate, he had put in appearance in the suit on behalf of defendants No. 6 and 7 at the instance of Mr. Sarjit Singh Chauhan, Advocate, by filing memo of appearance. Mr. Neeraj Maheshwari, Advocate went on to state that after one appearance, nobody turned up to contact him and therefore, he did not appear in the suit thereafter. Mr. Maheshwari stated that he had disclosed the next date of hearing to Mr. Sarjit Singh Chauhan, Advocate. This testimony of Mr. Neeraj Maheshwari, Advocate further corroborates the version of defendants No. 6 and 7 that they had not authorized or instructed Mr. Neeraj Maheshwari, Advocate to appear on their behalf in the suit. In view of the aforesaid, it becomes manifest that learned lower appellate Court was justified in setting aside the ex parte judgment and decree qua defendants No. 6 and 7 because they were wrongly proceeded ex parte in the suit without service of summons on them. There is no perversity, illegality or jurisdictional error in impugned judgment of the lower appellate Court so as to call for interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is thus found to be devoid of substance and is, therefore, dismissed in limine.