Punjab-Haryana High Court
Om Parkash vs Balwinder Kumar And Another on 19 January, 2012
Author: Rajesh Bindal
Bench: Rajesh Bindal
CR No. 2557 of 2011 (1)
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
Civil Revision No. 2557 of 2011 (O&M)
Date of decision : 19.1.2012
Om Parkash .. Petitioner
vs
Balwinder Kumar and another .... Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Gulzar Mohd., Advocate, for the petitioner.
Mr. Rahul Rampal, Advocate, for the respondents.
Rajesh Bindal J.
1. Challenge in the present petition is to the order dated 29.1.2011 passed by the learned court below whereby the application filed by the petitioner for restoration of the application filed before the learned court below under Order IX Rule XIII CPC, was dismissed.
2. Briefly the pleaded facts of the case are that the petitioner was a tenant in the shop in question under the respondents. A suit for eviction filed by the respondents was decreed on 28.3.2000, thereby ordering ejectment of the petitioner. The possession of the shop in question was delivered to the respondents in execution of the decree by the bailiff. The petitioner filed an application before the learned court below seeking setting aside of the ex-parte judgment of the learned court below, on 29.8.2000. The application remained pending in the court below. On 4.1.2005 on account of non-appearance of the counsel for the petitioner, the same was dismissed in default. The application for restoration thereof was filed on 2.6.2005, which was dismissed vide impugned order dated 29.1.2011.
CR No. 2557 of 2011 (2)3. Learned counsel for the petitioner submitted that the petitioner has been condemned unheard at every stage. Firstly ex-parte judgment and decree was passed against him. The possession of the shop in dispute was taken. Immediately thereafter, he filed application for setting aside ex-parte judgment and decree. When the case was listed on 4.1.2005, the petitioner's counsel had wrongly noted down the next date of hearing as 4.5.2005. When he went to the court on that date, he came to know that his case was not listed. He immediately filed application in which the court directed the Ahlmad to trace the file and put up the same on 2.6.2005. After the report, he came to know that the application filed by the petitioner has been dismissed for non-prosecution on 4.1.2005. He immediately filed application for restoration of the application. There was no delay as such in filing the application as it was filed immediately after the petitioner acquired the knowledge about the application having been dismissed in default.
4. Learned counsel for the petitioner further submitted that the learned court below has gone wrong in holding that the petitioner had not filed any application seeking condonation of delay in filing the application for restoration for the reason that it was not required to be filed as Hon'ble the Supreme Court in Bhagmal and others vs Kunwar Lal and others 2010 (3) Apex Court Judgments 107 has opined that in case all the ingredients for condonation of delay are mentioned in the application for setting aside of the ex-parte decree, no separate application is required to be filed as such. The prayer is for setting aside of the impugned order.
5. On the other hand, learned counsel for the respondents-landlord submitted that the after the possession of the shop in question was delivered to them on 26.8.2000 in execution of the decree passed in their favour, they are in possession of the property. He further submitted that during the trial of the suit, the petitioner did not chose to appear. Even the application for setting aside of the ex-parte decree was not pursued by the petitioner diligently. The same remained pending for a period of more than 4 years. When listed on 4.1.2005, on account of absence of the petitioner as well as his counsel the same was dismissed in default. Filing an application in the CR No. 2557 of 2011 (3) court on 4.5.2005 claiming that wrong date was noted by the counsel is merely an after thought. It was filed merely to create evidence otherwise no such application is required to be filed. The proceedings of the case on 4.1.2005 could be verified either from the court or from the counsel opposite. To claim that the petitioner got the knowledge of the dismissal in default of his application only on 2.6.2005 is not correct.
6. Learned counsel for the respondents further submitted that even in terms of the judgment of Hon'ble the Supreme Court in Bhagmal's case (supra) relied upon by the petitioner and considering the facts stated by the petitioner in the application for restoration of his application for setting aside of the ex-parte decree, no case for condonation of delay is made out. In support of his plea regarding date of knowledge no evidence was led. He did not produce the diary or the brief of the counsel to show that he had noted a wrong date as 4.5.2005 on 4.1.2005, as was sought to be pleaded. In the absence of any clinching material before the court below, no illegality has been committed by the learned court below in dismissing the application for restoration. The order does not call for any interference.
7. Heard learned counsel for the parties and perused the paper- book.
8. The undisputed facts on record are that ex-parte judgment was passed against the petitioner on 28.3.2000. In execution of the decree, the possession of the property in question was delivered to the respondents- landlord through court on 26.8.2000. The petitioner filed application for setting aside of the ex-parte judgment and decree on 29.8.2000, which was dismissed in default on 4.1.2005. The application for restoration was filed on 2.6.2005. The learned court below had dismissed the same on 29.1.2011 holding that the same was beyond limitation.
9. The contention sought to be raised by learned counsel for the petitioner to justify his claim that the application is in fact within limitation is that on 4.1.2005, the counsel for the petitioner in the court below had wrongly noted down the date as 4.5.2005. When the petitioner attended the court on the next date of hearing, the case was not shown in the cause list. Immediately an application was filed in the court seeking a direction to the CR No. 2557 of 2011 (4) Ahlmad to trace the file. The learned court below ordered the Ahlmad to trace the file and put up on 2.6.2005. The petitioner had come to know about the order of dismissal in default of the application only on 2.6.2005, when the Ahlmad so reported. The fact remains that in the normal course, no application as such is required to be filed for tracing out any file. In the event the case is not shown in the cause list, the proceedings which may have taken place on the previous date of hearing could merely be enquired from the opposite counsel or file could be inspected. Apparently filing of an application was merely to create evidence to show that the petitioner got the knowledge of the order now. Further a perusal of the order passed by the learned court below shows that in support of the claim made by the petitioner that the next date of hearing was wrongly noted by the counsel as 4.5.2005, neither his diary nor brief was produced in evidence which could establish the bonafides of the petitioner.
10. The judgment of Hon'ble the Supreme Court in Bhagmal's case (supra) also does not come to the rescue of the petitioner for the reason that even if there is no application seeking condonation of delay in filing the application for restoration of the earlier application for setting aside of ex- parte decree, was filed, the facts stated in the application, could itself be considered, but as the material on record in the case in hand is that the petitioner could not establish the stand taken by him in his application for restoration pertaining to date of knowledge. Unless that fact is established with cogent evidence, the application could not be said to be within limitation and has rightly been dismissed by the learned court below.
11. For the reasons mentioned above, I do not find merit in the present petition. The same is dismissed.
19.1.2012 (Rajesh Bindal)
vs. Judge
(Refer to Reporter)