Punjab-Haryana High Court
Vijay Kumar vs Hardam Singh on 7 February, 2017
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CR No.5909 of 2016 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.5909 of 2016 (O&M)
Date of decision: 07.02.2017
Vijay Kumar
... Petitioner
Vs.
Hardam Singh
... Respondent
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Sherry K. Singla, Advocate
for the petitioner.
*******
RAMESHWAR SINGH MALIK, J. (ORAL)
Feeling aggrieved against the judgment dated 03.08.2016 (Annexure P-6) passed by learned Additional District Judge, Bathinda, upholding the order dated 08.12.2014 (Annexure P-5) passed by the learned trial Court, thereby dismissing the application of the defendant under Order 9 Rule 13 of the Code of Civil Procedure (for short 'CPC'), for setting aside the ex-parte decree dated 22.10.2007, petitioner has approached this Court, by way of instant revision petition under Article 227 of the Constitution of India, for setting aside the impugned orders.
Brief facts, necessary for disposal of the present revision petition, are that Civil Suit No.31 dated 21.02.2007 was filed by the plaintiff-respondent Hardam Singh for recovery, on the basis of pronote and receipt executed by the defendant-petitioner in favour of the plaintiff. When the defendant was not being served in the ordinary course, plaintiff sought to serve him through 1 of 17 ::: Downloaded on - 10-07-2017 03:04:48 ::: CR No.5909 of 2016 -2- publication. The learned trial Court felt satisfied about the due service on the defendant. However, when defendant did not come forward despite service, to contest the suit, it was decreed ex-parte by the learned trial Court vide its judgment and decree dated 22.10.2007 (Annexure P-1).
Plaintiff-decreeholder filed his execution application dated 10.05.2008 (Annexure P-2) impleading the defendant-petitioner on the same address, at which he was impleaded as defendant in the suit. After about six years, petitioner filed his undated application (Annexure P-3) under Order 9 Rule 13 CPC for setting aside the abovesaid ex-parte decree dated 22.10.2007. Respondent-plaintiff filed his reply to the application vide Annexure P-4 dated 02.08.2013. After hearing the learned counsel for the parties and going through the record, the learned trial Court dismissed the application of the petitioner vide its impugned order dated 08.12.2014 (Annexure P-5). Petitioner filed his appeal which also came to be dismissed by the learned Appellate Court vide its impugned judgment dated 03.08.2016 (Annexure P-6). Hence this revision petition at the hands of the defendant.
Learned counsel for the petitioner submits that since the petitioner was not properly served, he did not come to know about the ex-parte decree in time. The moment he came to know, application for setting aside the ex-parte decree was filed but the learned Courts below failed to appreciate the true factual as well as legal aspect of the matter, while passing their respective impugned orders, which have resulted in miscarriage of justice. In support of his contentions, learned counsel for the petitioner places reliance on the judgments of this Court in Subedar Amar Singh, Vs. Avtar Singh, 2003 (3) RCR (Civil) 580, Jaswant Singh Vs. Sukhjit Kaur, 2010 (3) PLR 33, Lilu 2 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -3- Ram Vs. Mangtu Ram and others, 2012 (5) RCR (Civil) 18 and Indal Kumar Vs. Gaurav Kumar Grover, 2015 (4) PLR 713. He prays for setting aside the impugned orders, by allowing the present revision petition.
Having heard the learned counsel for the petitioner at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that keeping in view the peculiar facts and circumstances of the case noticed hereinabove, no fault can be found with the impugned orders passed by the learned Courts below. The revision petition is without any merit, which is liable to be dismissed, for the following more than one reasons.
It was a matter of record and has also gone undisputed that the defendant-petitioner was residing at Maur Mandi, at the time when he executed the pronote and receipt in favour of the plaintiff-respondent. In this view of the matter, the plaintiff was well justified to implead the petitioner-defendant at his same address of Maur Mandi. It is pertinent to note here that even in his application under Order 9 Rule 13 CPC (Annexure P-3), petitioner has shown himself resident of Maur Mandi itself. He did not even furnish his complete address of Barnala. He was also conveniently silent as to when he shifted from Maur Mandi to Barnala.
He also did not disclose his source of information and knowledge as to when and from whom he came to know about the ex-parte decree dated 22.10.2007 (Annexure P-1). Above all, he did not make any effort, whatsoever, to explain the inordinate long delay of about six years. Having said that, this Court feels no hesitation to conclude that the petitioner was having knowledge about the ex-parte decree but he was trying to avoid the same for as long as he 3 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -4- could. Under these circumstances, learned Courts below committed no error of law, while passing the impugned orders and the same deserve to be upheld.
In fact, petitioner has not come to the Court with clean hands. When the delay was inordinately long, it was obligatory on the part of the defendant-petitioner to explain the said delay, showing sufficient cause, so as to establish his bonafide, enabling the Court to accept his application for setting aside the ex-parte decree. However, he failed to do so. No attempt at all was made to show the sufficient cause. He did not disclose his source of information and knowledge in his application, for the reasons best known to him. It seems that he was trying to play smart not only with the plaintiff but with the Courts also. Such a litigant is not entitled for any discretionary relief or sympathy from the Court as well. Under these circumstances, it can be safely concluded that learned Courts were well within their jurisdiction to pass the impugned orders and the same deserve to be upheld, for this reason also.
During the course of hearing, when a pointed question was put to learned counsel for the petitioner, to disclose at least to this Court now, the source of information and knowledge of the petitioner about the ex-parte decree (Annexure P-1), after a long period of about six years, he had no answer and rightly so, it being a matter of record. This was the reason that learned counsel for the petitioner could not substantiate any of his arguments despite making his best efforts.
Had the petitioner made at least a sincere effort, speaking truth before the Court, with a view to furnish sufficient cause by disclosing his source of information and knowledge about the ex-parte decree, he would have been certainly entitled for setting aside the ex-parte decree. However, in the 4 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -5- present case, as noticed hereinabove, petitioner did not make any such effort and that too for undisclosed reasons. In this view of the matter, it is held that the learned Courts below were well justified in dismissing the application of the petitioner under Order 9 Rule 13 CPC, by passing the impugned orders and the same deserve to be upheld.
The learned trial Court considered each and every relevant aspect of the matter, while passing the impugned order dated 08.12.2014 (Annexure P-
5). The relevant observations made in para 10 of the impugned order, available at page 45 of the paper book, read as under: -
"After taking into consideration the oral and documentary evidence on record, I have observed that applicant has submitted that he had left his place of residence i.e. Maur Mandi and that the plaintiff/respondent got his publication effected on the wrong address whereas in his cross-examination this witness has admitted that he had not left his address to anyone and had even not informed the Food and Supply Department since he was having ration card of Maur Mandi. This fact goes to show that it is admitted that at the time of the alleged execution of the pronote the defendant/applicant was residing at Maur Mandi and, therefore, at the time of filing the present suit, the plaintiff got the summons of the defendant effected on the address given in the pronote and receipt. Further since the summons could not be effected on the given address, the plaintiff moved the application for publication since he could not find out the present address of the defendant. Perusal of the publication attached in the main file reveals that the
5 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -6- publication had been got effected on 20.8.2007 in Punjabi Daily Charhdi Kala newspaper and the circulation of the said newspaper is wide through out Punjab and accordingly publication effected in the said newspaper is deemed to be a proper service of the defendant/applicant whose correct present address could not be found by the plaintiff despite due diligence. Since the defendant/applicant had been duly served through publication, he had been certainly rightly proceeded against ex- parte on 21.9.2007 and, thereafter, the suit of the plaintiff having been filed under order 37 CPC had been rightly decreed by the predecessor Court. Therefore, the defendant/applicant has failed to carve out any reason for setting aside the judgment and decree dated 20.10.2007. Further since the said judgment and decree are not being set aside, therefore, no ground is made out for granting leave to defend to the defendant/applicant. Accordingly this issue stands decided against the applicant/defendant and in favour of the respondent/plaintiff."
Again, the learned appellate Court reconsidered and reappreciated the factual as well as legal aspect of the matter, before passing the impugned judgment, which has been found based on sound reasons. Cogent findings recorded by the learned appellate Court in paras 11 and 12 of its impugned judgment, which deserve to be noticed here, read as under: -
"As far as findings of learned lower court on issue no.1 are concerned, it is the main contention of the appellant that he was not properly served in the present case as he was not residing at
6 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -7- Maur Mandi when the present suit was filed in the lower court. This contention is devoid of any merits. It is admitted fact that when the alleged pronote and receipt was executed, defendant- appellant was residing at Maur Mandi as per the address mentioned in the pronote and receipt. The plaintiff-respondent was not knowing any other address of the defendant, filed this suit for recovery under order 37 CPC by giving the address of the defendant at Maur Mandi. When the service of the defendant could not be effected at the given address and no other address was available with the plaintiff, defendant was proceeded exparte after publication in daily newspaper Chardi Kalan Patiala in its Edition dated 20.8.2007. The defendant-appellant while appearing in the witness box as AW 1 has admitted in his cross examination that he has not informed election department, sales tax department or Food supply department regarding his shifting to Barnala from Maur Mandi. Admittedly he is a qualified person having BA, B.Ed degree. In his further cross examination he has further stated that he does not know whether service against him was effected in daily newspaper Chardi Kalan, Patiala. It clearly shows that there is no specific denial on the part of the defendant regarding his service in the present case through publication. He further admitted in his cross examination that he remained in Maur Mandi from June 2005 to December 2005 and thereafter left for Barnala. He further stated that when he left permanently for Barnala in December 2008 he has not given any information to any department.
7 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -8- Meaning thereby he remained in Maur Mandi upto December 2008 as admitted by him in his cross examination. Whereas the suit was filed before the lower court on 21.2.2007 and decided on 22.10.2007. Meaning thereby during that period when the case was pending before the lower court, he was in Maur Mandi itself but intentionally not appeared in the Court for the reasons best known to him. Rather he is a habitual defaulter. In his cross examination he has admitted that he has been convicted in 2-3 cases under section 138 of Negotiable Instrument Act. To rebut the version as put forward by this witness, respondent himself appeared as RW 1 and reiterated on oath that defendant intentionally avoided his service, due to which he was rightly proceeded exparte by the trial court and decree was passed accordingly. He further stated that just to linger on the matter of payment, defendant has filed this application after six years of decree. This witness was cross examined at length during trial but ld. counsel for appellant-defendant failed to shatter his testimony. Keeping in view the entire evidence adduced on file, it is clear that defendant-appellant was duly served through publication and he was rightly proceeded exparte on 21.9.2007 and thereafter exparte decree was passed. Citation relied upon by learned counsel for appellant 2013(3) CCC 728 (P&H) Rishipal versus Sunita and others is not applicable to the facts of the case in hand. In that case, exparte decree was passed on 20.8.1999 and whereas application to set aside the same was filed on 28.8.1999 and due to 8 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -9- which Hon'ble High Court has held that court should take liberal approach for advancing the cause of substantial justice. Whereas it is not so in the present case. Rather in the present case, application has been filed after a lapse of more than 5 ½ years from the date of judgement and decree. Even it is not made clear by the defendant-appellant that how he came to know about the exparte judgement and decree after a lapse of 5 ½ years. Similarly citation relied upon by ld. counsel for appellant-defendant 2013(3) CCC 159 (Rajasthan) Munish Soni vs. Usha Soni is not applicable to the facts of the case in hand. In the present case proper service was effected through publication in daily newspaper.
Moreover, this application is hopelessly time barred. According to article 123 of Limitation Act 1963, limitation for filing an application to setting aside exparte decree is 30 days. The time from which period begins to run the date of decree or where the summons or notice was not duly served, when the applicant had the knowledge of the decree. Primarily limitation for filing such an application is 30 days. If the limitation period is to be extended then it is for the applicant to prove this fact that he had not knowledge of the decree. In the present case, appellant has failed to prove on record that when he came to know about the decree. Rather in para no.6 of the application a vague plea has been taken that he came to know about the exparte decree only two days ago and this application was filed in the Court on 18.2.2013.
9 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -10- It is not explained at all from where and how he came to know about the decree only two days ago as alleged by him. As such, there is no illegality or irregularity in the findings of learned lower court on issue no.1 and these findings are hereby affirmed." A combined reading of both the abovesaid relevant parts of the impugned orders passed by the learned Courts below will make it crystal clear that neither the petitioner was a bonafide litigant nor any manifest injustice has been caused to him, by passing the impugned order. Neither the petitioner has approached the Court with clean hands nor it can be held by any stretch of imagination that he has shown a sufficient cause for setting aside the ex-parte decree. In fact, the sufficient cause, at the hands of the defendant-petitioner, has been found conspicuously missing in the present case.
Coming to the judgments relied upon by learned counsel for the petitioner, there is no dispute about the observations made therein. However, on close perusal of the cited judgments, none of them has been found of any help to the petitioner, being distinguishable on facts. It is settled proposition of law that peculiar facts and circumstances of each case are to be examined, considered and appreciated first before applying any codified or judgemade law thereto. Sometimes, difference of even one additional fact or circumstance can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundrao Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533, Union of India Vs. Amrit Lal Manchanda and others, 2004 (3) SCC 75, State of Orissa Vs. Md. Illiyas, 2006 (1) SCC 275 and State of Rajasthan VS. Ganeshi Lal, 2008 (2) SCC 533.
With a view to avoid repetition and also for the sake of brevity, the 10 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -11- observations made by the Hon'ble Supreme Court in para 11 and 12 of its later judgment in Ganeshi Lal's case (supra), reiterating its earlier view taken in Amrit Lal Manchanda's case (supra) and Mohd. Illiyas's case (supra), which can be gainfully followed in the present case, read as under:-
"11. "12....Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well- settled theory of precedents, every decision contains three basic postulates; (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India and 11 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -12- Ors. v. Dhanwanti Devi and Ors. (1996 (6) SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathem (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides. Coming to the peculiar fact situation obtaining on record of the present case, it is unhesitatingly held that learned Permanent Lok Adalat discussed, considered and appreciated each and every relevant aspect of the matter, before passing the impugned award. The only endeavour made by the learned Permanent Lok Adalat was to do complete and substantial justice between the parties and this approach adopted by learned Permanent Lok Adalat has been found well justified on facts as well as in law. Ed. See State of Orissa Vs. Mohd. Illiyas, (2006) 1 SCC 275 at p.282, para 12.
12. 15....Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context.
12 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -13- These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed: (AII ER p. 14 C-D) "The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
16. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said (at All ER p.297g-h), "Lord Atkin's speech.....is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J in Shepherd Homes Ltd. V. Sandham (No.2) (1971) 1 WLR 1062 observed: (AII ER p. 1274d-
e) "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
(AII ER p. 761c) 13 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -14- "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT, AIR 1962 SC 680 "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it Ed. See Union of India Vs. 14 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -15- Amrit Lal Manchanda, (2004) 3 SCC 75, pp. 83-84, paras 15-18."
Similar question fell for consideration before the Hon'ble Supreme Court on more than one occasions, including in the cases of Mahabir Singh Vs. Subhash and others, 2008 (1) SCC 358, Sunil Poddar and others Vs. Union Bank of India, 2008 (2) SCC 326, M.P. Matsya Mahasangh Vs. Sudheer Kumar and another, 2010 (15) SCC 179 and Parimal Vs. Veena @ Bharti, 2011 (3) SCC 545.
The Hon'ble Supreme Court laid down the law and reiterated the same every time, observing that whenever there is inordinate long delay at the instance of an applicant under Order 9 Rule 13 CPC, he must give reasonable explanation showing a justified cause, failing which the ex-parte decree would not be set aside mechanically as a routine matter, nor the Court shall set aside the decree passed ex-parte, merely on the ground that there has been an irregularity in the service of summons. Similar view was taken by this Court in Ram Narain Singh Vs. Gurinder Kaur, 1997 (4) RCR (Civil) 301 and Union of India Vs. M/s Fibre Processors Pvt. Ltd., 2001 (1) RCR (Civil) 141.
The relevant observations made by the Hon'ble Supreme Court in paras 6 and 10 of its judgment in Sudheer Kumar's case (supra), which can be gainfully followed in the present case, read as under: -
"The explanation for the delay of one year and ten months in filing the applications under Order 9 Rules 13 Code of Civil Procedure was found to be unsatisfactory resulting in the petitions under Order 9 Rule 13 being dismissed and the same being affirmed by the High Court. When the appeals under Section 96 were filed there was a delay of 948 days. The High Court examined the 15 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -16- reason assigned for the delay and found that the delay was not satisfactorily explained. It also held that there was no explanation as to why and how the Appellant stopped participating in the proceedings before the trial court from June 2005 and why the Petitioner did not file the appeals even when the applications under Order 9 Rule 13 Code of Civil Procedure were dismissed.
Xxx xxx xxx We find that the cause shown for the delay is wholly inadequate and unsatisfactory, bordering on suppression and misrepresentation of facts to the courts, in regard to knowledge of order placing it ex parte and the subsequent ex parte decrees. We find that the High Court was justified in refusing to condone the delay of 948 days. It is, therefore, unnecessary to examine the matter with reference to the merits."
Reverting to the facts and circumstances of the case in hand, this Court is convinced that in spite of the fact that it was obligatory for the petitioner to disclose his source of information and knowledge about passing of ex-parte decree, showing a sufficient cause and explaining the inordinate long delay of about six years, yet he miserably failed to do so and that too for no good reasons. Under these circumstances, it is held that the learned Courts below proceeded on a factually correct and legally justified approach, while passing the impugned orders and the same deserve to be upheld, for this reason as well.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted 16 of 17 ::: Downloaded on - 10-07-2017 03:04:50 ::: CR No.5909 of 2016 -17- above, coupled with the reasons aforementioned, this Court is of the considered view that the present revision petition is wholly misconceived, bereft of merit and without any substance, thus, it must fail. No ground for interference has been made out.
Resultantly, with the abovesaid observations made, instant revision petition stands dismissed, however, with no order as to costs.
[ RAMESHWAR SINGH MALIK ]
07.02.2017 JUDGE
vishnu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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