Sukhwinder Singh vs Darshan Kumar and Others

L.N. Mittal, J.—By filing this revision petition under Article 227 of the Constitution of India, plaintiff Sukhwinder Singh has assailed judgment dated 14.12.2010 Annexure P/8 passed by learned Additional District Judge, Patiala. Plaintiff-petitioner filed suit against all the 6 respondents who included three sons (defendants No. 1 to 3/respondents 3 to 5), 2 daughters (respondents No. 1 and 2/defendants No. 4 and 6 and wife (defendant No. 5/respondent No. 6) of Kesho Ram. Plaintiff alleged that Kesho Ram entered into agreement to sell dated 16.11.2005. All the six defendants are his natural heirs after the death of Kesho Ram. There was caveat on behalf of defendants No. 1 to 3 and 5 (sons and wife of Kesho Ram). Accordingly, on presentation of the suit, notice was ordered to be issued to defendants No. 4 and 6 as well as to counsel for caveators/remaining defendants No. 1 to 3 and 5. On 20.2.2007, Mr. Rakesh Kumar Garg, Advocate who had filed caveat on behalf of defendants No. 1 to 3 and 5 appeared on behalf of all the six defendants and filed memo of parties on behalf of defendants No. 4 and 6 also. Subsequently, written statement was filed. Issues were framed. Interim stay application was also disposed of. On 11.8.2007, one witness of the plaintiff was examined in chief and cross-examination was deferred because original counsel for the defendants was not available. On the next date of hearing i.e. on 25.10.2007, none appeared for the defendants and therefore, they were proceeded against exparte. The suit was decreed exparte vide judgment and decree dated 27.2.2008, Annexure P/5.

Thereafter defendants No. 4 and 6 i.e. daughters of Kesho Ram filed application under Order 9 Rule 13 of the CPC (in short, CPC) for setting aside the exparte judgment and decree alleging that they were never served in the suit and never authorized Mr. Rakesh Kumar Garg, Advocate to appear on their behalf and in fact they were residing in their matrimonial homes at Faridabad and Panchkula respectively where they were never served. They learnt of the exparte judgment and decree in summer vacation of June, 2008 when they visited their parental home. Thereupon they filed the application.

The application was resisted by the plaintiff on various grounds.

Learned trial court vide order dated 8.8.2009 dismissed the application of defendants nos. 4 and 6 for setting aside the exparte judgment and decree. However, appeal against the said order preferred by defendants No. 4 and 6 has been allowed by learned appellate court vide judgment dated 14.12.2010 and thereby exparte judgment and decree Annexure P/5 have been set aside. Feeling aggrieved, the plaintiff has filed this revision petition to challenge the aforesaid judgment dated 14.12.2010 of the appellate court.

I have heard counsel for the parties at fairly considerable length and perused the case file with their assistance.

Counsel for the petitioner contended that all the defendants, including defendants No. 4 and 6 who have now applied for setting aside exparte judgment and decree, had put in appearance in the trial court on 20.2.2007 and memo of appearance was filed on behalf of defendants No. 4 and 6 by Mr. Rakesh Kumar Garg, Advocate. Thereafter written statement Annexure P/4 was also filed on behalf of all defendants although signed by defendant No. 1 only. It was also pointed out that defendants No. 4 and 6 also made statement Annexure P/2 before revenue officer that their father had executed a Will in favour of remaining defendants i.e. his wife and three sons and therefore, defendants No. 4 and 6 had no objection if the mutation was sanctioned on the basis of the said Will and accordingly mutation Ex. P3 was sanctioned in favour of defendants No. 1 to 3 and 5 and thus, defendants No. 4 and 6 were left with no right, title or interest in the suit land, but have now filed this application for setting aside the exparte judgment and decree with malafide intention.

On the other hand, counsel for respondents No. 1 and 2 (defendants No. 4 and 6) contended that summons were not served on them as per ` and 12 CPC and consequently in view of Order 9 Rule 13 CPC, exparte judgment and decree are liable to be set aside against them. It was also contended that they never authorized Mr. Rakesh Kumar Garg, Advocate to appear on their behalf nor they gave any vakaltnama to the said Advocate nor they signed written statement Annexure P/4 and therefore, the exparte judgment and decree against defendants No. 4 and 6 are liable to be set aside and have been rightly set aside by the lower appellate court.

I have carefully considered the rival contentions. Defendants No. 4 and 6 are real sisters of defendants No. 1 to 3 and daughters of defendant No. 5. Defendants No. 1 to 3 and 5 had already filed caveat through Mr. Rakesh Kumar Garg, Advocate. On 20.2.2007, the said Advocate also filed memo of appearance on behalf of defendants No. 4 and 6 and put in appearance on behalf of all the six defendants. Thereafter written statement was filed on behalf of all the defendants. Interim stay application was decided after hearing counsel for both the parties. Issues were framed. Part evidence of the plaintiff was also recorded in presence of counsel for the defendants. It was thereafter that on 25.10.2007 none appeared for the defendants and therefore, they were proceeded against exparte. The suit was ultimately decreed vide exparte judgment and decree dated 27.2.2008. The instant application by defendants No. 4 and 6 only for setting aside exparte judgment and decree was filed on 25.7.2008. The exparte judgment and decree have not been challenged by defendants No. 1 to 3 and 5. Defendants No. 4 and 6 are none else but real sisters of defendants No. 1 to 3 and daughters of defendant No. 5. In these circumstances, the trial court rightly dismissed the application filed by defendants No. 4 and 6 for setting aside exparte judgment and decree. The impugned judgment of lower appellate court is completely perverse and illegal and suffers from jurisdictional error.

It is significant to notice that defendants No. 4 and 6 in support of their version did not examine Mr. Rakesh Kumar Garg, Advocate as witness to prove that he had not been authorized by them to appear on their behalf in the suit. Consequently, adverse inference has to be drawn against defendants No. 4 and 6. No action has either been taken by defendants No. 4 and 6 against the said Advocate for allegedly appearing on their behalf without authorization.

It is also the version of defendants 4 and 6 that they learnt of the exparte judgment and decree Annexure P/5 at their parental home. Consequently, it cannot be said that defendants No. 4 and 6 had no knowledge of the suit while the suit remained pending. It is also unbelievable that defendants No. 1 to 3 and 5 would not have informed defendants No. 4 and 6 about the suit being members of the same family. Application moved by defendants No. 4 and 6 is malafide. For the reasons aforesaid, I find that defendants No. 4 and 6 have failed to make out a case for setting aside exparte judgment and decree Annexure P/5. Accordingly, the instant revision petition is allowed. Impugned judgment Annexure P/8 of lower appellate court is unsustainable and the same is set aside. Order Annexure P/7 passed by the trial court, dismissing application of defendants No. 4 and 6 for setting aside exparte judgment and decree, is restored. The parties shall bear their own respective costs throughout.