Madan Lal and Others vs Karam Chand and Others

R.L. Anand, J.—This is an appeal and has been directed against the judgment dated 3.11.1998, passed by the Additional District Judge, Ambala, who allowed the appeal of the defendants Karam Chand and Gian Chand and set aside the judgment and decree dated 16.9.1997 passed by the Court of Civil Judge (Senior Division), Panchkula, and remanded the case to the trial Court for fresh decision according to law.

Some facts can be noticed in the following manner:-

Madan Lal, Tarsem Lal, Surinder Pall and Smt. Parkasho Devi filed a suit for possession by way of pre-emption with respect to the agricultural land measuring 3 kanals 7 marlas, fully described in the head note of the plaint. In the said suit, the defendants were ordered to be served for 5.1.1996 by ordinary process. The judgment of the trial Court shows that nobody gave the appearance on behalf of the defendants and they were proceeded ex parte vide over dated 5.1.1996. Thereafter, ex parte evidence was recorded and, finally, the trial Court decreed the suit of the plaintiffs on 16.9.1997. Against this judgment, two remedies were open to the defendants either to move under order 9 rule 13, CPC, or to file an appeal u/s 96, CPC. The defendants adopted the second remedy. The appeal was filed on 20.8.1998. It was, prima facie, barred by time. Along with the appeal, the appellant-defendants also filed an application u/s 5 of the Limitation Act which was allowed vide order dated 16.10.1998 and the delay of 338 days in filing the appeal was condoned. This order dated 16.10.1998 could be challenged by the plaintiffs within 30 days but the main appeal itself was disposed of on 3.11.1998 before the expiry of the 30 days. Vide this judgment dated 3.11.1998, the appeal was allowed, the judgment and decree of the trial Court was set aside and the directions were given to the trial Court to proceed with the case according to law and the parties were directed to appear before the trial Court on 13.11.1998.

Aggrieved by the order dated 16.10.1998, and the judgment and decree dated 3.11.1998, the present appeal. It may also be mentioned here that due to inadvertence earlier, the appellants filed a Regular Second Appeal but vide order of the High Court dated 7.12.1998, the same has been treated as S.A.O.

I have heard Mr. Rajnish Narula, Advocate, on behalf of the appellants and Mr. Vivek Suri, Advocate, for the respondents, and with their assistance have gone through the impugned judgments/orders passed by the trial Court as well as the first appellant Court.

As I have stated in the earlier portion of this order, the defendants were ordered to be served for 5.1.1996 by ordinary process. There was no specific order from the court that the defendants should also be got served through the registered post. It appears from the order of the appellate Court that the contesting defendants were ordered to be proceeded exparte on the basis of the report of refusal made by the postal authorities on the registered covers. Since, there was no order for furnishing the registered post, therefore, in these circumstances, it was not appropriate on the part of the appellate court to pass the ex parte order.

The learned Counsel for the appellants submitted that under order 5 rule 19-A, CPC, it is permissible to the court to simultaneously issue the ordinary process as well as the process through registered post and if the defendants had refused to accept the registered process, it will be presumed that they had the knowledge of the litigation. The counsel also submitted that there was a chain of litigation between the parties. One litigation was pending before the revenue authorities and the other in the civil Court and the plaintiffs took a specific plea there that their suit for possession by way of pre-emption has been decreed ex parte. The counsel vehemently contended that the ex parte decree has been set aside by the appellate court on whimsical and arbitrary grounds by simply holding that the counsel for the opposite party had not gone through the grounds of appeal. The said excuse is not acceptable to the law. The learned counsel also drew my attention to 1987 P.L.J. 475.

On the contrary, the stand of the learned Counsel for the respondents is that the appellant-plaintiffs cleverly got issued the registered notices through the process agency with the court. Those registered notices never reached the defendants. The defendants had no knowledge of the pre-emption suit. The application u/s 5 of the Limitation Act has been rightly allowed by the first appellate Court by giving a liberal interpretation, therefore the said order should not be disturbed in the present appeal. The counsel also submitted that the judgment of the first appellate Court when it has remanded the case for re-trial is just and proper.

I have considered the rival contentions of the parties. The ex parte orders though looks to be very convenient and harmless on the face of it, but in the view of this Court, these orders are of utmost importance and before resorting to the provisions of order 9 rule 7, CPC, the civil Court should have given utmost care to ensure that before passing the ex parte orders against the defendants, it must be satisfied personally that the defendant has been duly served. Ex parte order and exparte decree is giving a lot of litigation in the law courts. Such litigation can be avoided at the initial stage itself if proper care is taken by the Presiding officers of the courts. In the present case, admittedly, there was no order from the court for the issuance of registered notices for the service of the contesting defendants. In these circumstances, it was not proper on the part of the trial Court to pass ex parte order against the contenting defendants. It is not satisfactorily proved on the record that the contesting defendants had the knowledge of the ex parte decree. A liberal interpretation which was sought to be given has already been given by the first appellate Court and, therefore, this court is not going to disturb the order of the first appellate Court nor is it going to set aside the judgment and decree of the first appellate Court because it has given a right to the defendants to contest the suit on merits.

In this view of the matter, this Court is inclined to affirm the impugned order dated 16.10.1998 and the impugned judgment dated 3.11.1998.

At this juncture, the learned counsel for the appellant-plaintiffs rightly submitted that a mischief can be played by the defendants to dispossess the plaintiffs so as to defeat them of their right of pre-emption itself. The counsel submitted that directions be given to the defendants that the plaintiffs shall not be dispossessed from the suit land during the pendency of the suit.

This contention of the counsel for the appellants has been refuted by the counsel opposite who stated that the plaintiffs are not in possession of the land in dispute and they were not in possession even on the date of the sale and, therefore, they had no right to file the suit for possession by way of pre-emption.

Possession is a question of fact. Any finding with regard to the possession on the date of the sale or on the date of the institution of suit is supposed to be given by the trial Court but certainly in order to allay the fears of the plaintiffs, directions are given to the parties to maintain status quo with regard to the possession as it existed on the date of the sale, on the date of the institution of the suit, on 7.12.1998 when Hon''ble V.K. Jhanji, J., passed the order "Status-quo regarding possession shall be maintained till further orders" and as it exists today. Directions are also given to the trial Court to expedite the trial because the suit was instituted somewhere in the year 1995 and try to conclude the same within one year from the date when the parties appear before it. The defendants shall also pay Rs. 2,000/- as costs, which have not been awarded by the first appellate Court while setting aside the ex parte decree. 13. Parties, through their counsel, are directed to appear before the trial Court on the date fixed. Copy of this order be given dasti to both the parties.