Dinesh Kumar vs Pankaj Kumar

Justice Rajiv Sharma, Judge

Material facts necessary for the adjudication of this petition are that respondent-plaintiff (hereinafter referred to as ''plaintiff'' for convenience sake) instituted a suit against the petitioner for specific performance of contract/agreement dated 2.5.2006. Petitioner was proceeded ex parte on 3.3.2009. learned Additional District Judge, Fast Track Court, Chamba decreed the suit preferred by the plaintiff bearing Civil Suit No. 2/2008/2006 on 5.3.2009. Petitioner was directed to execute sale deed of the suit property in favour of the plaintiff on receipt of balance sale consideration within a period of one month from the date of judgment as per agreement dated 2.5.2006 and in case of failure on the part of the petitioner to execute sale deed, then the plaintiff was entitled to get the sale deed registered through court by execution of this decree. It was clarified that if the balance sale consideration was not paid by the plaintiff to the petitioner or deposited in the court within stipulated period then the suit of the plaintiff was to be dismissed. Petitioner preferred an application under order 9 rule 13 of the CPC for setting aside ex parte decree dated 5.3.2009. He also filed separate application u/s 5 of the Limitation Act for condonation of delay for filing the application under order 9 rule 13 of the Code of Civil Procedure. It was registered as Civil Misc. No. 136/2010. According to the petitioner, he came to know about the ex parte decree only on 3.10.2010. Thereafter, he moved an application for obtaining copy of judgment and decree on 5.10.2010. The same was supplied to him on 8.10.2010. Thereafter, he moved an application on 22.10.2010 for setting aside ex parte decree. The application was contested by the plaintiff. According to him, petitioner knew about the ex parte order dated 5.3.2009. Learned Additional District Judge, Fast Track Court framed issues on 21.12.2010. He dismissed the application on 18.5.2011. Hence, the present petition.

Mr. Anand Sharma has strenuously argued that the order passed by the court below is not sustainable.

Mr. Tarlok Chauhan has supported the order passed by the court below.

I have heard the learned counsel for the parties and have perused the record carefully.

What emerges from the material brought on record by the parties is that defendant had already been granted three opportunities to lead his evidence on 18.11.2008, 24.12.2008 and 18.2.2009. He was proceeded ex parte on 3.3.2009. According to the defendant, learned counsel appearing on his behalf informed him the next date of hearing 3.4.2009 and not 3.3.2009. Petitioner obtained the certified copy of the judgment and decree dated 5.3.2009 on 8.10.2010. Thereafter, he filed the same after 14 days on 22.10.2010.

Petitioner has appeared as AW-2. According to him, he received the notice of execution and thereafter he contacted his counsel, who directed him to obtain the copy, which he received on 8.10.2010. The fact of the matter is that plaintiff has filed execution petition and the notice of the same was served upon the petitioner on 21.9.2010. He appeared in the court on 28.9.2010. Thus, the version of the petitioner is belied that he came to know about the ex parte judgment and decree only on 3.10.2010 is false. It has also come in the statement of the petitioner that he had contacted his counsel on 3.4.2009. Since he had contacted his counsel on this date, i.e. 3.4.2010, he must have been apprised by his counsel about the ex parte order dated 3.3.2009. It has also come in his statement that he had started construction of the house. Thus, he was at Chamba and knew about the pendency of the case. The case was pending before the learned court below since 2006.

Sh. K.K. Gupta has appeared as AW-1. He has stated that he had been appearing for the petitioner but on 3.3.2009 he could not appear since neither the petitioner met him nor imparted any instructions nor furnished the list of witnesses. He has not stated that he conveyed wrong date to the petitioner of 3.4.2009 instead of 3.3.2009. Thus, the statement of AW-1 Sh. K.K. Gupta will not advance the case of the petitioner.

Plaintiff (RW-1) has filed his affidavit Ex.RW1/A. He has corroborated the contents of the reply to the application u/s 5 of the Limitation Act. According to him, the petitioner was aware of the pendency of the suit since he was coming to Chamba to run business and he had also intimated him about the judgment and decree. Once the petitioner had met his counsel on 3.4.2009, in normal circumstances, he should have requested his counsel for setting aside the ex parte order dated 3.3.2009. Petitioner has failed to prove that he was prevented by sufficient cause from appearing in the court. There is neither any illegality nor any irregularity in the order dated 18.5.2011 passed by the learned court below.

Accordingly, in view of the observations made hereinabove, there is no merit in the petition and the same is dismissed. There shall, however, be no order as to costs.