Punjab-Haryana High Court
Smt. Pushpa Wati Monga And Anr. vs Gopal Mohan Monga And Ors. on 20 May, 1998
Equivalent citations: (1998)119PLR806, 1998 A I H C 3896, (1998) 119 PUN LR 806, (1998) 2 CURLJ(CCR) 391, (1998) 3 LANDLR 336, 1998 HRR 544
JUDGMENT Sat Pal, J.
1. C.R. Nos. 5212 and 5219 of 1997 arc being disposed of by this common judgment as both the revision petitions have been directed against two different orders passed by the learned trial Court in the same civil suit No. 535 of 27.3.1990.
2. In this case, plaintiffs Nos. 1 to 4 and defendant No. 2 are real brothers and defendant No. 1 is their mother: Plaintiffs Nos. 1 to 4 filed a suit against the defendants on 27.8.1990 for a declaration to the effect that the plaintiffs and defendants Nos. 1 and 2 were joint owners and in possession of House No. 48, Sector 6, Panchkula. On 21.4.95 the defendants were ordered to be proceeded ex-parte by the learned trial Court. Thereafter, the defendants filed an application for setting aside the order dated 21.4.1995 by which they were proceeded ex-parte. On this application, following issues were framed by the learned trial Court on 3.9.1996 :-
1. Whether the ex-parte proceedings against the defendants are liable to be set aside as alleged in the application ? OPP
2. Whether the application is within time? OPP
3. Relief.
3. Learned trial Court vide order dated 24.11.97 dismissed the application of the defendants for setting aside the order dated 21.4.1995. In this order, it was observed by the learned trial Court that it has been proved on the basis of evidence on record that the defendants were avoiding service although they were residing in the same house. It was also observed that even as per the case of the defendants, they came to know about the ex-parte proceedings on 5.6.1996 but even then application for setting aside the ex-parte proceedings was filed on 14.6.1996. The aforesaid order dated 24.11.1997 has been challenged by the defendants in C.R.No. 5212 of 1997.
4. After the application filed by the defendants for selling aside the ex-parte proceedings was dismissed on 24.11.1997, the case was adjourned to 1.12.1997 on which date one of the plaintiffs was examined and by way of last opportunity the case was adjourned to 4.12.1997. On 4.12.1997, the case was adjourned to 5.12.1997. On 5.12.1997 application filed under Order 18 Rule 17-A, CPC was dismissed and the evidence of the plaintiffs was also closed on that date as despite last opportunity no witness of the plaintiffs was present. The aforesaid order dated 5.12.1997 has been challenged by the plaintiffs in C.R.No. 5219 of 1997.
5. Mr. Thapar, learned counsel appearing on behalf of the defendants in C.R.No. 5212 of 1997 submitted that the plaintiffs could not prove the fact that the defendants had been served. In this case, he referred to the statement of Amrit Mohan Monga, plaintiff No. 2 and submitted that this witness in his statement has staled that the munadi was conducted on 24.4.1995 whereas as per the case of the plaintiffs, the munadi was conducted on 16.2.1995. The process server in his statement had stated that Munadi was conducted on 16.2.1995 for the next date fixed by the Court which was 21.4.1995. He further submitted that as per the statement of the process server, the munadi was conducted at 2 p.m. whereas one of the attesting witnesses namely Neeru Khatar had stated that munadi was conducted at 11 a.m.
6. Mr. Chopra, learned counsel appearing for the plaintiffs however submitted that the summons for the service on the defendants were sent for as many as seventeen dates and though the defendants were living in the same house, they deliberately avoided service and it was in these circumstances that the defendants were proceeded ex-parte. He further submitted that even the facts stated in the application filed by the defendants for condonation of delay were vague. He therefore contended that there was no merit in the civil revision No. 5212 of 1997 filed by the defendants.
7. As regards the impugned order made in C.R.No. 5219 of 1997 Mr. Chopra, submitted that the application filed by the defendants for setting aside the ex-parte proceedings was dismissed on 24.11.1997 and the case was adjourned to 1.12.1997 on which date one witness of the plaintiffs was examined and the case was adjourned to 4.12.1997 by way of last opportunity. He further submitted that on 4.12.1997 the case was not taken up by the learned trial Court, as the learned trial Court was busy on that day in another case, and no time was left for it to hear this case and as such the case was adjourned to 5.12.1997. He further submitted that on 5.12.1997 the application filed under Order 18 Rule 17-A was disposed of and without giving any further opportunity to the plaintiffs, evidence of the plaintiffs was closed on the same date. He, therefore, contended that the impugned order dated 5.12.1997 passed in C.R.No. 5219 of 1997 was not legally sustainable.
8. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. From the records, I find that there had been material discrepancy in the evidence led on behalf of plaintiffs in the proceedings initiated on the application filed by the defendant for setting aside the order dated 21.4.1995 by which the defendants were proceeded ex-parte. Plaintiff No. 2 who himself appeared as a witness on behalf of the plaintiffs had stated in his statement that the munadi was conducted on 24.4.1995 whereas the defendants were proceeded ex-parte on 21.4.1995 which is prior to 24.4.1995. In view of these facts, I am of the opinion that the defendants had not been served properly in accordance with law before the impugned order dated 21.4.1995 proceeding exparte against them.
9. In view of this, the impugned order dated 21.4.1995 cannot be sustained legally.
10. The order dated 5.12.1997 impugned in C.R.No. 5219 of 1997 is also not legally sustainable as sufficient opportunity has not been given to the plaintiffs before closing their evidence. As stated hereinabove, on 1.12.1997 one witness of the plaintiffs was examined and by way of last opportunity the case was adjourned to 4.12.1997 but on 4.12.1997 the learned trial Court itself did not take up the case as no time was left for this case. It was in these circumstances that the case was adjourned to 5.12.1997 and on that date the application under Order 18 Rule 17-A was disposed of and immediately thereafter the evidence of the plaintiffs was closed. It is true that during the period 1995-96 the plaintiffs were given three opportunities i.e. on 15.9.1995, 15.12.1995 and 29.12.1996 for examining their evidence but no witness of the plaintiff was present on those days, but the impugned order could not be based on the negligence of the plaintiffs on the aforesaid three dates as in the meantime, the defendants had filed application for setting aside the order dated 21.4.1995 by which they were proceeded ex-parte and the application of the defendants was decided on 1.12.1997. In view of these facts, the order dated 5.12.1997 impugned in C.R.No. 5219 of 1997 has to be set aside.
11. In view of the above discussion, both the Civil Revision Petition No. 5212 of 1997 filed by the defendants and C.R.No. 5219 of 1997 filed by the plaintiffs are allowed and the impugned orders dated 21.4.1995 and 5.12.1997 passed by the learned trial Court are set aside. No costs.
12. The parties through their counsel are directed to appear before the learned trial Court on 28.5.1998.