Savitri Devi and Others vs Krishan Kumar and Others

A.N. Jindal, J.—The Petitioners have invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 07.08.2010 passed by the Civil Judge (Junior Division), Abohar, dismissing the application of the Petitioners under Order 9 Rule 7 of the CPC for setting aside the ex-parte proceedings initiated against Mohinder Kumar, deceased father of the Petitioners.

There were six Defendants in the suit filed by Plaintiff-Respondent No. 1 (hereinafter referred to as ''Respondent''), out of whom Mohinder Kumar was proceeded against ex-parte, whereas, the other Defendants are still contesting the suit.

The factual background of the case is that Respondent Nos. 1 and 2 had filed a suit for separate possession by way of partition against Mohinder Kumar, husband of Petitioner No. 1 and father of Petitioner Nos. 2 to 4 as well as against the proforma Respondents. On the report submitted by the Process Server regarding refusal of Mohinder Kumar, he was proceeded ex-parte on 27.10.2004. However, he died on 10.10.2007 during the pendency of the suit. Thereafter, Petitioners applied for impleading themselves as legal representatives of Mohinder Kumar and for setting aside the ex-parte proceedings taken against Mohinder Kumar, on 15.10.2009. The Petitioners had submitted in the application that they had come to know about the pendency of the suit only on 15.10.2009 and thereafter, they moved an application for impleading themselves as legal heirs and for setting aside the ex-parte proceedings. In the reply to the said application, it was submitted that as Mohinder Kumar (since deceased) was proceeded against ex-parte on 27.10.2004, therefore, the application being belated one, should be dismissed.

Having heard the rival contentions, it appears that Mohinder Kumar was not properly served in the case. Merely on the basis of the report of refusal, he was proceeded against ex-parte.

No substituted service was conducted upon him.

Petitioners have submitted that since they were not party to the suit, therefore, they had no knowledge regarding the same and on coming to know about the suit, they applied for impleading themselves as party. It is a suit for partition. Though, Mohinder Kumar was proceeded against ex-parte on 27.10.2004, yet the Respondent could not lead any evidence up to 26.07.2008 i.e. for four years. There is nothing on the record to show that the present Petitioners had any knowledge about the pendency of the suit. Even the application filed by the Petitioners for impleading them as legal heirs of Mohinder Kumar was allowed and they were impleaded as Defendants in place of Mohinder Kumar.

Therefore, there was no reason to disallow them from contesting this suit for partition. The argument raised by counsel for the Respondents that if the ex-parte proceedings are set aside against the Petitioners at this stage, then the adjudication of the trial could be further prolonged, is not tenable. In this case, the Petitioners alone could not be held responsible for the delay, but the Respondents also delayed the trial as they did not lead any evidence for four years. The delay, if any, caused by the Petitioners, could be compensated with costs, particularly when Mohinder Kumar was not properly served in the case. Similar view was taken in Civil Revision No. 7514 of 2009, decided on 30.04.2010 titled as Jugraj Singh v. Amar Singh and Ors.wherein it was observed as under:

Plaintiff-Respondent No. 1 did not close his ex-parte evidence during the intervening period of almost four years since 19.02.2005, when the Petitioner was proceeded ex-parte in the suit, till 10.01.2009, when the Petitioner moved application for setting aside the ex-parte proceedings against him. The suit is still pending in the trial Court. After passing of the impugned order, the trial Court adjourned the suit for 07.12.2009 for ex-parte evidence of the Plaintiff, which is however, now said to have concluded.

In this case also, even after Mohinder Kumar was proceeded against ex-parte, the trial Court did not record the evidence for four years. The trial is still pending. Therefore, in order to provide a right to the Petitioners to contest the suit when the other Defendants are already contesting the suit, would not in any manner cause any prejudice to the rights of the Respondents.

However, the delay in filing of the application could be compensated with costs.

Resultantly, this petition is accepted, the impugned order dated 07.08.2010 is set aside, subject to payment of Rs. 15,000/- as costs. The Petitioners are directed to file written statement within 10 days from the date of receipt of certified copy of the order. Thereafter, replication if any, would be filed within a week and then the Court would proceed in accordance with law and conclude the trial within six months positively.