Ramesh Kumar and others vs Silak Ram and others

L.N. Mittal, J.—Ramesh Kumar etc. - three sons and widow of Suraj Singh (defendant no. 4 -since deceased), as his legal representatives, have filed this revision petition under Article 227 of the Constitution of India impugning order dated 25.07.2011 (Annexure P-1), passed by learned Civil Judge (Junior Division), Rohtak, thereby dismissing application (Annexure P-2) filed by the petitioners for setting aside ex-parte proceedings ordered against defendant no. 4 Suraj Singh vide order dated 25.07.2009 (Annexure P-6) and for impleading the petitioners as legal representatives of defendant no. 4. The petitioners alleged that defendant no. 4 was not properly served and was, therefore, wrongly proceeded ex-parte. The petitioners, who are legal representatives of defendant no. 4, were not aware of the pendency of the suit and learnt about the suit only a week before filing application (Annexure P-2) dated 31.05.2011 from defendants no. 8 and 9.

The application was resisted by respondent no. 1-plaintiff by filing reply (Annexure P-3). Averments made in the application were controverted. Some other pleas were also raised.

Learned trial court, vide impugned order (Annexure P-1), dismissed the petitioners'' application (Annexure P-2). Feeling aggrieved, petitioners have filed this revision petition.

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

Counsel for the petitioners contended that summon issued to defendant no. 4 by Regd. A. D. post was received with the report (Annexure P-5) of the Postman that the recipient was not at home in spite of repeated visits and hence returned, and therefore, there was no valid service of summon on defendant no. 4 and he was wrongly proceeded ex-parte vide order dated 25.07.2009 observing that the acknowledgment due of defendant no. 4 was received back served.

On the other hand, counsel for respondent no. 1 contended that defendant no. 4 was very much aware of the pendency of the suit because vide interim order dated 02.06.2009 (Annexure P-4) passed in the suit, status quo regarding disbursement of compensation amount of acquired land qua share of the plaintiff was ordered. Pursuant thereto, reduced amount of compensation was received by defendant no. 4 and thus, he became aware of the pendency of the suit and passing of status quo order therein, but in spite thereof, he did not appear in the suit.

I have carefully considered the aforesaid contentions.

Perusal of the impugned order reveals that earlier compensation amount was being released to defendant no. 4 for 1/6th share, but in pursuance of status quo order (Annexure P-4), reduced amount of compensation qua 1/7th share was released to defendant no. 4 and he actually received the said reduced amount. Consequently, defendant no. 4 became aware of the pendency of the suit, but in spite thereof, he did not appear in the trial court. In this view of the matter, ex-parte proceedings ordered against defendant no. 4 are not liable to be set aside. Impugned order of the trial court in this regard does not suffer from any illegality, perversity or jurisdictional error warranting interference by this Court under Article 227 of the Constitution of India.

Counsel for the petitioners contended that petitioners, in their application (Annexure P-2), besides seeking setting aside of ex-parte proceedings ordered against their predecessor Suraj Singh - defendant no. 4, vide order dated 25.07.2009, also sought impleadment of the petitioners as legal representatives of defendant no. 4, but the said prayer of the petitioners has not been decided by the trial court by impugned order. Counsel for respondent no. 1-plaintiff has no objection to impleadment of petitioners as legal representatives of Suraj Singh - defendant no. 4. Accordingly, impugned order of the trial court requires to be modified to this extent. The petitioners are ordered to be impleaded as legal representatives of defendant no. 4 Suraj Singh for the purpose of the suit. They shall join the proceedings of the suit from the stage, at which the suit was pending, when they moved application (Annexure P-2). With the aforesaid modification in the impugned order of the trial court, the instant revision petition stands disposed of accordingly.