Himachal Pradesh High Court
Rajeev Kumar vs . Raj Kumari Birdi A/W on 11 December, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
Rajeev Kumar vs. Raj Kumari Birdi a/w connected matter Ex. Petition No.24 of 2014 a/w CS No.64 of 2011 11.12.2024 Present: Ms. Ambika Kotwal, Advocate, for the petitioner.
JD No.1 ex parte.
None for proposed JD No.2, 6, 13, 14, 16 to 18, 21, 22, 29, 30, 35, 39 to 41.
Mr. Rajnish K. Lall, Advocate, for the proposed JDs No.3 to 5, 7 to 12, 15, 19, 20, 23 to 28, 31 to 34, 36 to 38, 42, 43 and 45.
Mr. H.S. Rana, Senior Advocate, with Ms. Kamlesh Kumari, Advocate, for proposed JD Nos. 6, 13, 14, 21, 22 and 30.
OMP No.161 of 2018 By way of this application, the applicant has prayed for setting aside the ex-party judgment and decree dated 02.12.2013 passed by this Court in Civil Suit No.64 of 2011.
Learned counsel for the applicant has submitted that in terms of the judgment and decree dated 02.12.2013, the suit was specific performance of agreement dated 08.04.2011 has been decreed in favour of the plaintiff and against the defendant ex party. Direction has been given by the Court to the defendant to execute sale deed in respect of suit land in favour of the plaintiff and get the same registered from the Competent Authority within 60 days as from the date of the judgment, failing which, the sale deed has been ordered to be liable to be executed and registered under the order of the Court at the expense of the defendant by granting such liberty to the plaintiff. Learned counsel for the applicant submits that the suit was instituted on 19.08.2011. Before the institution of the suit, part of the suit land, description whereof has been given in the application was purchased by the applicant by way of a registered sale deed dated 23.02.2011. As the agreement to sell, subject matter of the suit, also contains the property, which has been purchased by the applicant and as the ex-party decree was obtained by the plaintiff by hoodwinking the Court as have been averred in detailed in the application, therefore, the same deserves to be set aside so that the applicant can contest the suit on merit.
On the other hand, learned counsel for the non- applicant has argued that the application is not maintainable for the reason that the provisions of Order 9 Rule 13 of the CPC come to the rescue of a defendant, who has been proceeded against ex party. She submitted that the applicant was a stranger to the proceedings. The applicant was not a defendant in the proceedings and, therefore, the provisions of Order 9 Rule 13 of the CPC cannot be taken assistance of by the applicant and accordingly, the application deserves to be dismissed.
In rebuttal, learned counsel for the applicant has placed reliance upon the judgment of the Hon'ble Supreme Court in Raj Kumar versus Sardari Lal and others (2004) 2 Supreme Court Cases 601 and has submitted that in terms of the judgment of the Hon'ble Supreme Court it is not as if only be defendant can file an application under Order 9 Rule 13 of the CPC and a person, who is affected by the judgment and decree can also invoke the provisions of the said Order and Rule.
I have heard learned counsel for the parties and have also carefully gone through the application as well as reply thereto as also the record of the Civil Suit.
The suit was filed by the non-applicant/plaintiff seeking the following reliefs:-
(i) "That a decree for specific performance of agreement to sell dread 08.04.2011 be passed by directing the defendant to execute and register the sale deed in favour of the plaintiff.
(ii) The a decree of permanent prohibitory injunction restraining the defendant from interfering in any manner in the peaceful possession of the plaintiff over the suit land measuring 10 Bighas in different Khewats and Khasta Nos. i.e. land comprised in Khata Khatauni No.50/60 to 62 bearing Khasra No. Kita (11) out of the total land measuring 14 Kana;l 01 Marla and land comprised in Khata Khatauni No. 53/69 bearing Kharsa Nos. 234, 241 Kita (2) out of the total land measuring of 07 Kanal 14 Marlas and land comprised in Khata Khatauni No. 49/50 bearing Khasra Nos. 486/314/240 (07-02), Khata Khatauni No.49/51 bearing Khasra No. 484/314/240 (1-
5), land comprised in Khata Khatauni No. 49/52 bearing Khasra No. 485/314/2409 (1-
14), Khata Khatauni No.19/53 bearing Khasra No. 171, 174, 175 Kita (3) out of the total land measuring 22 Kanal 13 Marlas and land comprised in Khata Khatauni No.49/54 bearing Khasra No.239 (8-3), Khata Khatauni No.49/55 bearing Khasra No.172, 173 Kita (2) out of the total land measuring 07 Kanal 14 Marlas, land comprised in Khata Khatauni No.49/56 bearing Khasra Nos. 487/242, 489/243 Kita (2) out of the total land measuring 6-00 Kanal, land comprised in Khata Khatauni No.49/57, bearing Khasra No.488/242, 490/243 Kita (2) out of the total land measuring 13 Kanal, land comprised n Khata Khatauni No.49/58 bearing Khasra No.246 (10-00), land comprised in Khata Khatauni No.49/59 bearing Khasra Nos. 228, 229, 230, 231, 232, 233, 235 and 236 Kita (8), out of the land measuring 56 Kanal 16 Marlas, pertaining to and situated at village Kirpalpur, Had Bast No.143, Tehsil Nalagarh, District Solan, H.P. as per jamabandi for the year 1998-99 as well as restraining the defendant from transferring alienating and encumbering the suit land in any manner.
(iii) In the alternative, a decree for recovery of a sum of Rs.18,00,000/- alongwith interest @18% per annum and cost on account of loss being sale consideration received by the defendant be passed."
The suit was instituted in the Court on 19.08.2011. There was one defendant in the suit, namely, Smt. Raj Kumari Birdi. In terms of the record Raj Kumari Birdi was proceeded against ex parte and this resulted in the passing of the ex-party decree by the Court against the said defendant.
This application under Order 9 Rule 13 of the CPC has not been filed by Smt. Raj Kumari Birdi, but has been filed by a person, who was not a party defendant in the Civil Suit. It is settled law that dominos litis is that of the plaintiff, though, under the provisions of Order 1 Rule 10 of the CPC parties can be subsequently impleaded in the proceedings either at the behest of the plaintiff or at the behest of a party, who is likely to be affected by the outcome of the Civil Suit.
Be that as it may, herein the reasoning that has been given in the application as to why the judgment and decree requires to be set aside is that, because, the applicant had already purchased part of the suit land before the institution of the Civil Suit and as now the judgment and decree passed adversely affects him, therefore, the applicant has a right to invoke the jurisdiction of this Court under Order 9 Rule 13 seeking setting aside of the ex-party judgment and decree.
This Court is of the considered view that this application is not maintainable. Order 9 Rule 13 of the CPC inter alia, provides that in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
A perusal of the statutory provisions thus demonstrates that the right for seeking setting aside of ex parte decree per se has been conferred upon the defendant. In terms of the judgment of the Hon'ble Supreme Court in Raj Kumar versus Sardari Lal and others (2004) 2 Supreme Court Cases 601, a party which had purchased the suit property during the pendency of the Civil Suit was allowed to file an application under Order 9 Rule 13 of the CPC seeking setting aside of an ex party judgment and decree. Hon'ble Supreme Court was pleased to hold that when a party purchases the suit property during the pendency of the litigation, then, it enters into the shoes of the defendant and it was on this analogy that the subsequent purchaser was allowed to intervene by way of an application under Order 9 Rule 13 of the CPC. However, in the present case, it is not as if, it was during the pendency of the Civil Suit that the applicant purchased the suit property from the defendant. Part of the suit property already stood purchased by the defendant even before the suit was filed. Therefore, this Court has no hesitation in holding that the judgment referred to by the learned counsel for the applicant is not applicable in the facts of this case as here it is not a case where the defendant has alienated the property during the pendency of the litigation, thus, entering into a venture of depriving the successful plaintiff of the suits of the decree. As the part of the suit land already stood purchased by the applicant before the initiation of the suit, therefore, this application is dismissed as not maintainable. However, it should not be construed that this Court has made any observation in the course of the adjudication of this application with regard to the binding-ness of the judgment and decree passed in favour of the applicant upon the present applicant.
Ex. Petition No.24 of 2014
As prayed for, list after four weeks.
(Ajay Mohan Goel) Judge December 11, 2024 (Vinod)