Satwant Kaur vs Manjit Kaur and Others

V.S. Aggarwal, J.—The present revision petition has been filed by Satwant Kaur petitioner directed against the judgment of the learned Additional District Judge, Amritsar, dated 8.10.1996. By virtue of the impugned judgment, the learned Additional District Judge had set aside the order passed by the learned trial Court. The ex parte decree dated 23.4.1992 was set aside. The case was remanded to the trial Court with the direction that the case be directed afresh after disposing of the application dated 14.1.1992 for bringing on record the legal heirs of Harbhajan Singh deceased.

Some of the relevant facts can conveniently be restated. One Mohinder Singh was the owner of 76 Kanals 4 Marias of land. He also had some land in village Berianwala, Tehsil Baba Bakal, District Amritsar. Mohinder Singh died on 15.8.1996. He was survived by his widow, two sons and two daughters. Mohan Singh and Harbhajan Singh were the two sons. They had set up two Wills dated 14.6.1986 and 9.8.1986 to claim inheritance of the land. The petitioner on 28.4.1989 filed a civil suit for possession alleging herself to be a co-sharer. Mohan Singh and Harbhajan Singh contested the suit and filed separate written statements. Ajit Kaur, the other sister of the petitioner, conceded the claim of the petitioner. The petitioner has completed her evidence and thereupon it was adjourned for the evidence of the respondents.

On 11.1.1992 Harbhajan Singh died and his legal representatives made an application that they be impleaded as a party on 14.1.1992. The case was adjourned to 3.2.1992 and then to 2.4.1992. On that date, counsel for Mohan Singh made a statement that he had no instructions. Legal representatives of Harbhajan Singh did not appear. They were proceeded ex parte. Ex parte judgment and decree had been passed.

Two separate applications were filed for setting aside the ex parte judgment and decree. Mohan Singh filed an application on 11.5.1992 alleging that he could not attend the Court on 2.4.1992 and so was not aware of the next date of hearing. The legal representatives of Harbhajan Singh also filed an application for setting aside the ex parte judgment and decree contending that the application for bringing them on record as legal representatives was pending. A statement was made by the counsel for Mohan Singh that he has no instructions. Since they had not been impleaded as legal representatives, the ex parte judgment and decree passed against them is a nullity.

The learned trial Court framed the issues in separate applications. The application filed by Mohan Singh was dismissed and also that of the alleged legal representatives of Harbhajan Singh. It was held that there was no sufficient ground for setting aside the ex parte judgment and decree. The legal representatives of Harbhajan Singh were not prevented by any sufficient cause from appearing in the Court.

Aggrieved by this order, only the legal heirs of Harbhajan Singh preferred appeal in the Court of District Judge, Amritsar. It was heard by the learned Additional District Judge, Amritsar. The learned Additional District Judge held that the legal heirs of Harbhajan Singh had not been impleaded and further even some of the heirs of Harbhajan Singh were minor. Their guardian had not been appointed. The appeal was allowed and ex parte judgment and decree was set aside.

Learned Counsel for the petitioner in the first instance urged that the learned Additional District Judge was in error in setting aside the whole judgment and decree as such. According to him, the application filed by Mohan Singh for setting aside the ex parte judgment and decree had been dismissed. He did not file the appeal. Therefore, qua him it must be taken to have become final. To this extent, the contention must be accepted to be correct. Once Mohan Singh had not preferred the appeal dismissing the application for setting aside ex parte judgment and decree, indeed, learned Additional District Judge should not have set aside the same qua Mohan Singh also. This was an inadvertent mistake and to that effect the order of the learned Additional District Judge calls for modification.

Pertaining to the application filed by the heirs of Harbhajan Singh, indeed, the order passed by the learned Additional District Judge requires no interference. It is not being disputed that Harbhajan Singh had died while the civil suit was pending. An application was filed for bringing the legal representatives on record. That application was not disposed of. The judgment and decree were passed without impleading the legal representatives of Harbhajan Singh deceased. This was an error which goes to the root of the matter. Not only this, it has rightly been noted that the legal representatives of Harbhajan Singh were not impleaded and even one of the alleged heirs, namely, Gurmit Kaur was a minor. There was no next friends appointed and judgment and decree had been passed. In these circumstances, the same was held to be a nullity. There is, thus, no ground to interfere in this part of the order passed by the learned Additional District Judge.

For these reasons, subject to the modification made above vis-a-vis Mohan Singh, the revision petition must fail and is accordingly dismissed.