Sher Singh and Another vs Gurmukh Singh and Another

L.N. Mittal, J.—Defendants no. 1 and 3 have approached this Court by way of instant civil revision petition filed under Article 227 of the Constitution of India impugning order dated 27.01.2011 passed by the trial Court and judgment dated 01.04.2011 passed by the lower Appellate Court thereby dismissing application filed by defendants (petitioners and proforma respondent no. 2) under Order 9 Rule 13 of the CPC (in short, CPC) for setting aside ex parte judgment and decree dated 06.09.2005 passed in suit instituted by respondent no. 1-plaintiff against petitioners and proforma respondent no. 2. Defendants alleged in their application that defendants no. 1 and 2 received the summons of the suit for 29.05.2001 without copy of plaint. Defendant no. 2 engaged counsel, who also filed memo of appearance on behalf of defendant no. 3 also without instruction from defendant no. 3. Defendant no. 3 never received any summons in the suit. Defendant no. 2 filed his written statement but did not inform defendants no. 1 and 3 about the suit. Counsel for defendant no. 2 also pleaded ''no instruction'' in the trial Court at subsequent stage without intimating the defendants. The Court thereafter issued notice to defendants no. 2 and 3 but they did not receive any notice and they ware served by publication in newspaper which had no circulation in the area where defendants are residing. On 15.03.2006, the plaintiff came to the house of defendant no. 2 and told about passing of the decree. Thereafter the defendants after making enquiries came to know of passing of the ex parte decree.

Plaintiff by filing reply contested the application and denied the averments made therein. It was submitted that the defendants were duly served in that suit and also subsequently by publication in newspaper and they deliberately did not appear in the trial Court.

Both the Courts below have dismissed the application filed by defendants under Order 9 Rule 13 CPC. Feeling aggrieved, defendants no. 1 and 3 only have filed this revision petition.

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

Counsel for the petitioners relying on judgment of Hon''ble Supreme Court in the case of G.P. Srivastava Vs. Shri R.K. Raizada and Others, contended that Courts should not adopt hyper technical approach while deciding application for setting aside ex parte decree/order where the party approaches the Court immediately within the statutory period of limitation. Relying on judgment of Hon''ble Supreme Court in the case of Malkiat Singh and Another Vs. Joginder Singh and Others, it was also argued that after notice was issued to the defendants after their counsel pleaded ''no instructions'', the case should have been proceeded from the stage when the counsel had pleaded ''no instructions''. Counsel for the petitioners also argued that period of limitation started from the date of knowledge and, therefore, application filed by defendants was within limitation. Reliance has been placed on judgment of Rajasthan High Court in the case of Narayan Lal Bagra and Another Vs. Hanuman Sharma and Others It was also submitted that there was valid explanation for alleged delay in filing the application and, therefore, limitation should be deemed to have started from the date of knowledge of ex parte decree, as held by Supreme Court in the case of Bhagmal and Others Vs. Kunwar Lal and Others,

On the other hand, counsel for respondent no. 1-plaintiff contended that the defendants intentionally did not appear despite service and therefore, there is no ground to set aside the ex parte judgment and decree. It was also submitted that after the counsel for defendants pleaded ''no instructions'' in the trial Court, there was no necessity of issuing fresh notice to the defendants but nevertheless they were also served with fresh notice but still they did not appear and, therefore, their application for setting aside ex parte decree has been rightly dismissed by the lower Courts. It was also argued that since the defendants had been duly served in the suit, limitation period started from the date of decree and not from the date of knowledge and, therefore, in the instant case, the application filed by the defendants was barred by limitation. Reliance in support of this contention has been placed on judgment of Rajasthan High Court in the case of Chhagan Lal @ Chhagan Mal and Another Vs. Shri Suresh Chauhan and Others, .

I have carefully considered the rival contentions. Defendant no. 1 was duly served but did not appear in the trial Court and was proceeded against ex parte on 29.05.2001. Consequently, arguments raised by counsel for petitioners cannot be availed of by defendant no. 1, who had not engaged counsel even in the first instance.

Defendant no. 2 has not filed this revision petition. He is satisfied with the orders of the Courts below. It was his counsel who had allegedly pleaded ''no instructions''. However, he has not approached this Court.

Counsel also appeared on behalf of defendant no. 3 and subsequently pleaded ''no instructions''. However, if a defendant appears through counsel and subsequently the counsel pleads ''no instructions'', no notice is required to be issued again to such defendant. It has been so held by this Court in unreported judgment dated 12.03.2012 passed in CR No. 2186 of 2007 tilted Jagdeep Kaur versus Manohar Singh.

In the instant case, it becomes manifest from the conduct of the defendants that they had intentionally not appeared in the trial Court and were rightly proceeded against ex parte. Consequently, there is no ground much less sufficient ground for setting aside the ex parte decree. Judgments cited by counsel for the petitioners are not attracted to the facts of the instant case.

Application filed by the defendants was also barred by limitation. The ex parte decree was passed on 06.09.2005 whereas application for setting aside the same was filed on 21.03.2006 i.e. long after expiry of limitation period of thirty days. Limitation period in the instant case started from the date of decree because the defendants had been duly served in the suit. Consequently, limitation period did not start from the date of alleged knowledge of the decree. Even otherwise, version of the defendants that they came to know of the decree on 15.03.2006 when plaintiff told defendant no. 2 about the same is also completely unacceptable. There was no occasion for the plaintiff to have informed the defendant no. 2 on 15.03.2006 i.e. six months after the passing of the decree and even before execution of the decree. It thus reveals that defendants were throughout aware of the decree and intentionally filed the application belatedly. The application is also thus barred by limitation and there was also no ground to condone the delay in filing the application. Judgments cited by counsel for the petitioners regarding plea of limitation are completely distinguishable on facts.

It is also significant to notice that defendant no. 2 admittedly appeared in trial Court through counsel and also filed written statement. All the defendants are real brothers. Consequently, defendants no. 1 and 3 also could not be unaware of the proceedings of the suit. All the defendants had common interest in the suit and also jointly filed application under Order 9 Rule 13 CPC. For this reason also, defendants no. 1 and 3/petitioners have no case for setting aside of the ex parte decree. Both the Courts below have recorded detailed reasons to dismiss the application of the defendants. Concurrent finding recorded by the Courts below in this regard does not suffer from any infirmity much less perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. On the contrary, the finding recorded by the Courts below is the only reasonable finding that can be arrived at on the basis of the material on record. The revision petition is not only meritless but is completely frivolous and is, therefore, dismissed.