Punjab-Haryana High Court
Nirmala Devi vs Hari Krishan on 1 December, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
Civil Revision No.8431 of 2014 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No.8431 of 2014
Date of decision: 11.12.2014
Nirmala Devi
....Petitioner
Versus
Hari Krishan . ..Respondent
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Navneet Singh, Advocate for the petitioner.
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G.S.Sandhawalia J.(Oral)
1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 10.2.2014 (Annexure P/2) whereby the petitioner/defendant had been proceeded against exparte and the case was adjourned for exparte evidence of the plaintiff. Challenge has also been laid to the order dated 10.10.2014 (Annexure P/3) whereby the application filed under Order 9 Rule 7 CPC for setting the exparte order was dismissed on the ground that it is filed on 3.7.2014 a date after the next date and since the application was not filed on 12.5.2014, the indulgence could not be granted.
2. A perusal of the paper-book would go on to show that the suit was for specific performance of agreement to sell dated 2.4.2003 and was filed after a period of more than 10 years. The defendant was proceeded against exparte on 10.2.2014. The application for setting aside exparte was not made on 12.5.2014 the next date. On the said date no evidence was present on behalf of the plaintiff and the case was adjourned to 3.7.2014. On that day the application for setting aside was filed on the ground that the applicant is resident of Gharaunda, District Karnal and she was suffering from long ailment and unable to attend the Court on each and every date. Power of attorney had not been signed and given to the counsel and therefore, the absence was neither intentional nor malafide As noticed the application has been filed which was dismissed on the ground of maintainability itself. PRADEEP KUMAR ARORA 2014.12.15 11:04 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.8431 of 2014 -2-
3. Counsel for the petitioner has very fairly pointed out that on 3.7.2014 the plaintiff itself had tendered into evidence affidavit and examined two witnesses and the case is now fixed for 9.1.2015 for exparte arguments. He has placed reliance upon the judgment of this Court in Ram Pal and others Vs. Jagrup Singh and others 1987 PLJ 355 to contend that sufficient cause should be very liberally construed. It is settled principle that rules of procedure are handmaids of justice. The case being at initial stage and the application having been filed immediately on the next date and only one date having gone between this Court is of the opinion that denial to the petitioner's right to defend the suit is not justified and the petitioner should have been saddled with exemplary costs for delaying the trial. The suit as noticed above being for specific performance of agreement to sell dated 2.4.2003 with regard to land measuring 4 Kanals 8 Marlas had serious civil consequences involved in it.
4. This Court in Ghanshyam Dass Vs. Kamal Kishore and another 2011(4) Civil Court Cases 343 examined the provisions of Order 9 Rule 7 CPC and held that there is no period of limitation prescribed for filing application for setting aside exparte proceedings. The limitation prescribed is only for exparte decree. The relevant observation reads as under:-
"7. So far as the question of limitation for filing an application under Order IX Rule 7 of the Code is concerned, the same is not res integra. It has been held by this Court in various judgments that no period of limitation is prescribed for filing an application for setting aside ex parte proceedings under Order IX Rule 7 of the Code. In Trilok Singh v. Smt.Ganga Devi, 1983(1) RLR 688, it was observed that 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 and that there was no limitation provided for setting aside the ex parte proceedings, which depends upon the discretion of the Court, on the peculiar facts of each case. The said observation was reiterated by this Court and followed in Siri Chand v. Ram Dhan and another, 1989 (1) Rev.L.R 481.
8. In another judgment rendered in Delhi Development PRADEEP KUMAR ARORA 2014.12.15 11:04 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.8431 of 2014 -3- Authority v. Shanti Devi, AIR 1982 Delhi 159, it was observed that there was no rule that an application under Order IX Rule 7 of the Code is to be filed within 30 days from the date of order of proceeding ex parte. Similar view was taken in Palani Nathan v. Devanai Ammal, (1989) 2 Mad L.J. 259.
9. This Court in a later judgment rendered in Kuldip Kaur v. Gurdeep Singh, 1994(1) Civil Court Cases 0001, after referring to all the previous judgments, also held that no limitation is provided for setting aside ex parte proceedings under Order IX Rule 7 of the Code.
10. Hence, there is no force in the argument of learned counsel for the petitioner that as the application is filed at a much belated stage, the same is not maintainable."
4. Keeping in view the above facts and circumstances of this case, this Court is of the opinion that there is no requirement of issuing notice to the respondents as it will unnecessarily entail unnecessary expenses and delay the matter. However, it is open to the respondents to file an appropriate application for recalling of the order in case there is any concealment of fact.
5. Accordingly, this Court is of the opinion that orders dated 10.2.2014 and 10.10.2014 (Annexures P12 and P/3 respectively) passed by the trial Court are not justified and the same are set aside. The petitioner shall be permitted to file his written statement on 9.1.2015 which is stated to be next date fixed before the trial Court. It is made clear that if the written statement is not filed on the next date of hearing, the present revision petition shall be deemed to have been dismissed. The petitioner, however, shall be liable to pay ` 5000/- as costs which will be paid to the plaintiff/respondent for delay in the prosecution of the case.
11.12.2014 (G.S.SANDHAWALIA)
Pka JUDGE
PRADEEP KUMAR ARORA
2014.12.15 11:04
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh