Hukmi Chand and Others vs Raj Kumar and Others

Dr. Vineet Kothari, J—The present Misc. Appeal under Order 43 Rule 1(d) of the Code of Civil Procedure has been filed by the appellants against the order dated 11.02.2009 passed by the learned District Judge, Udaipur respectively in Civil Misc. Case No. 92/2001 "Hukmi Chand Vs. Raj Kumar & Ors." and Civil Misc. Case No. 93/2001 "Manohar Lal Vs. Raj Kumar & Ors.".

By the impugned order dated 11.02.2009, the learned District Judge (Shri M.L. Sharma, RHJS) has rejected an application under Order 9 Rule 13 of the Code of Civil Procedure filed by the defendants-applicants - Hukmi Chand and Manohar Lal against an ex parte decree of specific performance in respect of the suit premises, a residential house with open land, in favour of the plaintiff-Raj Kumar, who filed the suit for specific performance (Suit No. 103/1993 - "Raj Kumar Vs. Josh Mathis") and obtained an ex parte decree against the defendants-Hukmi Chand and Manohar Lal on 22.11.1994.

The application was filed by the defendants on the ground that the summons of the suit issued by the learned Trial Court of District Judge, Udaipur never served upon them as the summons were issued for incomplete address "Hukmi Chand S/o Lal Chand, Beawar" and presumption of service was drawn by the learned Court below, as the same was purportedly sent by registered post under Order 5 Rule 19-A of the Code of Civil Procedure. A copy of such summons for the date "04.07.1994" is produced as Annexure-B along with the memo of the present appeal.

The reasons assigned by the learned District Judge, Udaipur for rejecting the application of the appellants/defendants/applicants filed under Order 9 Rule 13 of the Code of Civil Procedure are quoted herein below for ready reference:-

The learned counsel Mr. J.L. Purohit, Senior Advocate with Mr. Ajay Purohit and Mr. Rajesh Purohit appearing on behalf of the appellants-applicants-defendants submitted that the glaring fact which was even noticed by the learned District Judge, Udaipur in para 11 of the impugned order namely, that the suit property stood clearly sold by the defendant No. 1 Josh Mathis in favour of the defendant Hukmi Chand by the registered sale deed on 13.03.1992 but this fact was ignored by the learned Court below while rejecting the application under Order 9 Rule 13 CPC for setting aside of ex parte decree of specific performance in favour of the plaintiff-Raj Kumar later as on 22.11.1994. The learned counsel also submitted that once a duly registered conveyance deed/sale deed was executed in favour of the defendant Hukmi Chand, the question of granting any decree of specific performance in favour of the plaintiff Raj Kumar subsequently even by a ex parte decree could not arise and only the relief against the defendant-seller Josh Mathis to the plaintiff-Raj Kumar was refund of his advance, if any, paid by him. The learned counsel further brought to the notice of the Court that under such a wrongly granted ex parte decree dated 22.11.1994, in execution proceedings, even the registered owner of the property in question Hukmi Chand was even dispossessed by the ex parte decree holder Raj Kumar and the possession of the suit property is since then with the decree holder Raj Kumar.

The facts in the connected CMA No. 762/2010 : Manohar Lal Vs. Raj Kumar & Ors. are almost similar and Manohar Lal was represented by the learned counsel Mr. Rajesh Choudhary, who made similar arguments, as made by the Senior Advocate Mr. J.L. Purohit, and in his case also, the registered sale deed by which the property in question was sold to him by Josh Mathis is dated 13.03.1992. Both these properties are the subject matter of the suit for specific performance filed by the plaintiff Raj Kumar which was filed on the basis of the alleged Agreement to Sell dated 31.08.1989 executed by the defendant - Josh Mathis in favour of the plaintiff in the year 1989 for which, the present suit for specific performance was filed by the plaintiff Raj Kumar on 26.08.1993, after the sale in favour of the present appellants.

On the other hand, the learned counsel Mr. Arpit Bhoot appearing for the plaintiff-respondent-Raj Kumar vehemently submitted that once the Court having concluded that the summons of the suit were properly served on the defendant/s and if the defendant/s chose not to remain present in the Court and not to contest the suit by filing the counter reply, then the defendant/s should be thank themselves for passing of the ex parte decree against them by the Court. The learned counsel also submitted that even in the execution proceedings, the said defendant Hukmi Chand remained unserved and in the ex parte execution proceedings, the warrant of possession was issued in favour of the decree-holder-Raj Kumar and the possession was handed over to the plaintiff-Raj Kumar by adopting due process of law and, therefore, the rejection of the application filed under Order 9 Rule 13 of the Code of Civil Procedure filed by both the defendants namely, Hukmi Chand and Manohar Lal was perfectly justified and proper and the same does not call for any interference by this Court in the present appeals filed by the defendants-Hukmi Chand and Manohar Lal.

I have given a thoughtful consideration to the rival submissions and perused the record of the case.

The learned District Judge, Udaipur has apparently fallen into an error in construing the registered sale deeds in favour of the two appellants namely, Hukmi Chand and Manohar Lal executed by the seller Josh Mathis on 13.03.1992 as illegal as well as in holding that the Agreement to Sell dated 31.08.1989 executed by the defendant - Josh Mathis in favour of the plaintiff Raj Kumar of the year 1989 was actually a sale whereas it was not so and, therefore, the ex-parte decree passed in favour of the plaintiff-Raj Kumar later as on 22.11.1994 and the challenge to the same by the appellants in the year 2001 when they came to know about the ex-parte decree cannot be faulted with and, therefore, the ex parte decree is liable to be quashed and set aside.

Ought one know that the remedy by way of specific performance empowers the Court to grant a discretionary relief, if the twin conditions of a valid agreement and readiness and willingness on the part of the plaintiff are fully satisfied before the Court. Even if these two factors are satisfied, it being a discretionary relief, the same can be refused and the money or advance can be directed to be refunded back instead of directing a transfer of the property under such agreement. It will depend upon the facts and circumstances in each case before the Court, as to whether, in a particular case, the decree of specific performance should be granted or not.

In the present cases, once the District Judge came across the fact that the suit property had already been transferred to the present appellants - Hukmi Chand and Manohar Lal under the valid registered sale deeds by the same defendant-vendor-Josh Mathis in favour of the present appellants Manohar Lal and Hukmi Chand on 13.03.1992, it should have struck to the learned District Judge that he could not grant the relief by way of decree of specific performance in favour of the plaintiff-Raj Kumar and by directing in the execution proceedings, the possession to be handed over back to the ex-parte decree holder-plaintiff Raj Kumar, he further committed gross error of jurisdiction. The learned District Judge had the occasion to set right the things by reopening the trial by allowing the application filed by the appellants under Order 9 Rule 13 of the Code of Civil Procedure. Instead of doing so, the said fact of registered sale deed in favour of the present appellants-Hukmi Chand and Manohar Lal, the learned District Judge ignored the same fact for the reasons best known to him and proceeded to reject the said application filed by the appellants under Order 9 Rule 13 of the Code of Civil Procedure; and at the same time, upheld the Agreement to Sell by the seller Josh Mathis in favour of the plaintiff Raj Kumar executed in the year 1989 which was, in the opinion of this Court, totally unsustainable in the eye of law. Had the defendants been allowed to adduce the proper evidence and defend their case, the fact of the registered sale deeds in their favour could have been properly established by them, resulting in refusal of ex-parte decree of specific performance in favour of the plaintiff Raj Kumar but the learned District Judge, Udaipur, instead of doing so, chose to give finality to the ex-parte decree by rejecting the aforesaid applications of the appellants under Order 9 Rule 13 of the Code of Civil Procedure resulted in serious miscarriage of substantial justice against the duly registered owners of the property. Consequently, the ensuing error committed by the Court below deserves to be corrected now by this Court in the present appeals.

Consequently, these appeals are allowed and as result of the same, the impugned order dated 11.02.2009 as well as the ex-parte decree dated 22.11.1994 and the consequential orders passed in the execution proceedings are quashed and set aside. The matter is restored back to the learned District Judge, Udaipur for fresh trial from the stage the matter was proceeded ex parte against the present appellants-defendants. In the circumstances of the case, the trial is directed to be expedited and concluded within a period of six months from today positively. Since under the ex parte decree in question, the plaintiff-decree holder was put in possession in execution proceedings, the status quo of his possession shall be maintained only for a period of six months from today, till the said suit is re-decided upon fresh trial by the learned District Judge, Udaipur.

It is also stated by the learned counsel for the appellants-defendants that in the absence of any summons, they could not even file their written statement before the learned Trial Court. Having regard to the circumstances of the case, the appellants-defendants are directed to file their written statement before the learned Trial Court within a period of one month from today. All the parties concerned may appear, either in person or through their counsels, before the learned Trial Court in the first instance on 27.07.2015 and soon after filing of the written statement by the defendants, the issues may be framed and thereafter evidence may be taken. The learned Trial Court is directed to conclude the trial of the case within a period of six months from today. No costs. A copy of this order be sent to the learned District Judge, Udaipur and the parties concerned forthwith.