Satnam Singh and Others vs Roop Lal and Others

V.K. Jhanji, J.—This appeal is directed against order dated 9.10.1997 passed by Additional District Judge, Amritsar dismissing the application of the defendants (appellants herein) under Order 41 Rule 21, C.P.C. for setting aside ex parte decree dated 30.5.1992.

In brief, the facts are that on 6.5.1989, plaintiff (respondent herein) filed suit for possession, of land measuring 15 Kanals 6 Marias impleading 10 defendants including his mother, Smt. Phoola Rani, his three brothers, namely, Jagdish Raj, Vijay Kumar and Bito (minor). All the defendants were proceeded ex parte. Vide judgment dated 29.10.1991 the suit was however dismissed by the Subordinate Judge 1st Class, Tarn Tsran. Plaintiff being aggrieved of the said order, filed Civil Appeal No. 111 dated 30.11.1991. Learned Additional District Judge summoned the record of the case and allowed the appeal by taking into consideration the additional documents which had not been exhibited by the trial Court.

It is the case of defendants that on coming to know of the ex parte decree, appellants made an application dated 4.10.1993 under Order 41 Rule 21, C.P.C. that the appeal has been decided without any notice to them and as such ex parte judgment and decree be set aside and they be heard on merits.

Learned Additional District Judge dismissed the application solely on the ground that the application filed is barred by time. It appears that the defendants had also filed an application for condonation of delay in filing application under Order 41 Rule 21. C.P.C. but the Court did not pass any order on the said application. Learned counsel appearing on behalf of the appellants has contended" that the learned Additional District Judge decided the appeal without any notice to the defendants and, therefore, the judgment and decree of the trial Court is not sustainable. It is also contended that rules of procedure are hand made of justice and are meant to advance justice and not to thwart it.

Against this, it is contended by the learned counsel for the plaintiff that under Order 41 Rule 21, C.P.C. trial Court had discretion to dispense with the service of notice of appeal on the defendants who had not appeared in the trial Court and the discretion having been exercised, should not be interfered with.

After hearing the learned counsel for the parties and on going through the record, I am of the view that the order under appeal is not sustainable in law.

Appeal preferred by the plaintiff was registered by the Court of Additional District Judge on 3.12.1991. It was ordered to be registered and lower Court record was summoned for 7.1.1992. As the lower Court record did not reach the Court on 7.1.1992, the case was adjourned to 18.3.1992. It appears that on the next date also the record did not reach the Court and the case was adjourned to 5.5.1992. On 5.5.1992, record was received and appeal was adjourned to 13.5.1992 for preliminary hearing. On 13.5.1992, appeal was partly heard and the case was adjourned to 15.5.1992 for remaining arguments. On the adjourned date, the learned Additional District Judge found that there were arguable points and so appeal was admitted. Learned Additional District Judge also said that notice is not necessary to be sent to the defendants as they were proceeded ex parte in the trial Court. Appeal was adjourned to 19.5.1992 for hearing on merits. On the said date, ex-parte arguments were heard and judgment was pronounced on 30.5.1992 allowing the appeal of the plaintiff and decreeing the suit against the defendants.

It is true that under Order 41 Rule 14(3) C.P.C., the Court has the power to dispense with the service of notice of appeal on the defendants who had not appeared in the trial Court but it is only discretionary. In the present case, defendants had not been personally served in the trial Court and it is the allegation of the defendants that ex-parte proceedings taken against them in the trial Court were also not in accordance with law. Be that, as it may, I am of the view that in the circumstances of the present case, learned Additional District Judge ought not have exercised discretion in dispensing with the service of notice of appeal on the defendants particularly when the allegation is that the defendants had not been served personally in the trial Court.

Consequently, this appeal is allowed and order dated 9.10.1997 dismissing application for setting aside ex parte judgment and decree and the ex parte judgment and decree dated 30.5.1992 passed by the Additional District Judge, Amritsar are set aside. As a result, appeal shall stand remitted to the Court of Additional District Judge, Amritsar for decision afresh in accordance with law. Parties through their counsel are directed to appear before the Additional District Judge, Amritsar on 16.11.1998.