Punjab-Haryana High Court
Jarnail Singh & Another vs Hans Raj & Others on 26 September, 2013
Author: Rajan Gupta
Bench: Rajan Gupta
CR-2856-2012 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
Civil Revision No.2856 of 2012 (O&M)
Date of decision: September 26, 2013
Jarnail Singh & another ...Petitioners
Versus
Hans Raj & others ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr. K.S. Boparai, Advocate for the petitioners.
Mr. Sunil Chadha, Advocate for respondent No.1.
Rajan Gupta, J.
Present revision petition is directed to challenge the order dated 18.3.2006 (Annexure P-1) and order dated 17.2.2010 (Annexure P-2).
Learned counsel for the petitioners has assailed both the orders. According to him, two witnesses PW1 and PW2 were examined in chief. However, defendants were not given opportunity to cross- examine them. This has resulted in grave injustice to the petitioners. Thus, impugned orders need to be set-aside. He has relied upon the judgment reported as Kuldip Kaur Vs. Gurdeep Singh, 1993 (2) PLR 703. Learned counsel appearing for the respondent No.1 has opposed the plea. According to him, suit has been pending before the trial court since the year 1994. The petitioners were proceeded ex-parte on 18.3.2006. Their application to set-aside ex-parte proceedings has Singh Rajpal 2013.11.27 16:51 I attest to the accuracy and integrity of this document Chandigarh CR-2856-2012 2 been rightly dismissed by the court below.
I have heard learned counsel for the parties and given careful thought to the facts of the case.
It appears, plaintiff filed a suit for declaration that judgment and decree dated 20.8.1993 passed by the civil court, was null and void. They also sought possession by way of specific performance on the basis of agreement to sell dated 29.12.1989 (extended upto 15.11.1991). During the proceedings, two witnesses namely, Vilayati Ram and Hans Raj appeared before the court but counsel for the defendants did not appear before the court. On 18.3.2006, defendants were proceeded ex- parte. An application was moved by the petitioners on 17.10.2006 for setting-aside ex-parte proceedings. In the application, the petitioners asserted that suit was instituted on 4.4.1994. Written statement was filed without any delay. Issues were framed on 21.7.1995. Thereafter, for six years no evidence was produced. Plaintiff stepped into witness-box only on 21.9.2001. He was partly cross-examined on 19.3.2002. Thereafter, his cross-examination was deferred for 8.6.2002 when he was again partly cross-examined. Another witness namely, Vilayati Ram appeared and deposed before the court. At this stage, counsel for the defendants pressed upon for cross-examination of both the witnesses simultaneously. Case was adjourned number of times thereafter. On 30.7.2005 PW Hans Raj was again partly cross-examined. On 17.9.2005 case was adjourned due to Lok Adalat. Thereafter, on 14.10.2005 no PW was present for cross-examination. Thereafter, on 16.12.2005 case was adjourned on request of counsel for parties. On 18.3.2006 both the witnesses were Singh Rajpal 2013.11.27 16:51 I attest to the accuracy and integrity of this document Chandigarh CR-2856-2012 3 present. However, due to non-appearance of defendants, they were proceeded ex-parte. The petitioner has contended before the court that they moved application for setting-aside ex-parte proceedings on 17.10.2006 itself as their counsel had shifted to High Court. Thus, there was no fault of the petitioners in pursuing the case. According to them, in case ex-parte proceedings are not set-aside and petitioners are not allowed to cross-examine the plaintiff and the marginal witness, it will lead to grave injustice.
In my considered view, the rial court ought to have allowed the application for setting-aside the ex-parte proceedings. It is evident that application was moved by defendant/petitioners in the year 1996. Same was decided by the court below vide impugned order dated 12.9.2011. In Kuldip Kaur's case (supra), it was held as follows:-
"6. After hearing learned counsel for both the parties, I am of the view that the order dated May 13, 1988, dismissing the application under Order 9 Rule 7 CPC cannot be sustained. The question of limitation under Order 9 Rule 7 CPC is not res integra. In Tirlok Singh v. Smt. Ganga Devi and another, 1983 (1) RLR 688 it was observed by a learned Single Judge of this Court that the period of 30 days under Article 123 of the Limitation Act, 1963, applies only to an ex parte decree and not to ex parte proceedings. It was further observed that, in fact there was no limitation provided for setting aside the ex parte proceedings, which depended upon the discretion of the Judge on the peculiar facts of each case. The above observation was reiterated and allowed in a later decision of this Court in Siri Chand v. Ram Dhan and another, 1989 (1) RLR 481. In Delhi Development Authority v. Shanti Devi and another, AIR 1982 Delhi 159, it was held that there was no rule that an application under Order 9 Rule 7 CPC is to be filed within 30 days from the date of the order proceedings ex parte. In Palani Nathan v. Devanai Ammal, 1989 (2) Madras Law Journal 259, after Singh Rajpal 2013.11.27 16:51 I attest to the accuracy and integrity of this document Chandigarh CR-2856-2012 4 referring to the case law, it was held that there is no limitation for filing a petition under Order 9 Rule 7 CPC. The finding of the learned trial Court on issue No.2 is, therefore, set aside.
7. This brings me to a consideration of the next important question, namely whether the appellant had been able to assign good cause for her previous non-appearance. It is settled law that the power to set aside ex parte proceedings has to be liberally exercised in order to advance the cause of justice. It may be pointed out that while the material words in Order 9 Rule 9 and Order 9 Rule 13 are "sufficient cause", the expression used in Order 9 Rule 7 is "good cause". The failure of the appellant in giving instructions to her counsel was required to be viewed in the totality of facts and circumstances in which the appellant was placed, especially on account of the unfortunate occurrence involving her brother. This, in my view, has resulted in failure of justice and accordingly the order dated May 13, 1988, passed by the learned Additional Senior Subordinate Judge, Nawanshahr is set aside. As a result, the final order passed in the petition under Section 9 of the Act is also set aside. The case is remanded to the Additional Senior Subordinate Judge, Nawanshahr with the direction to re-admit the same against its original number and proceeding according to law from the stage of the proceeding prior to August 4, 1987, when the appellant was proceeded ex parte. As this is a matrimonial matter and has been considerably delayed, it is further directed that the trial Court shall decide the matter within six months from the date of receipt of records. The trial Court record be sent there at once. The parties through their counsel are directed to appear before the Additional Senior Subordinate Judge, Nawanshahr, on September 8, 1993."
In my considered view, in view of the grounds made out in the application, same deserves to be allowed. Impugned orders are, thus, hereby set-aside. Revision petition is allowed.
(RAJAN GUPTA) JUDGE September 26, 2013 'rajpal' Singh Rajpal 2013.11.27 16:51 I attest to the accuracy and integrity of this document Chandigarh