IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO.262 of 2007 Date of decision: 15.9.2011 Sh.Baldev ….Petitioner Versus Ramesh Chand and others ….Respondents Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No For the petitioners: Mr.Vinay Kuthiala, Advocate. For the respondents: None for respondents 1 to 5. Mr.Dinesh Thakur, vice counsel for Respondent No.6. _________________________________________________ Deepak Gupta, J. (oral) 1. The petitioner, by means of this petition, has challenged the order dated 24.9.2007 whereby the application filed by two of the legal heirs of original defendant No.1 Sukh Ram has been allowed and the order dated 22.5.1995 whereby the deceased Sukh Ram was proceeded against ex-parte has been recalled and the order dated 31.5.2007 whereby three of the legal representatives of defendant No.1 were proceeded against ex-parte was set-aside. 2. The undisputed facts are that Sh. Bania, predecessor-in-interest of respondent No.6 herein, filed a suit against Sukh Ram, predecessor-in-interest of respondents 1 to 5 and 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 Sh.Baldev, the present petitioner. In this suit, it was claimed that the plaintiff Bania Ram and defendant No.2 Baldev, who are real brothers, are owners in possession of the suit land and that defendant No.2 be restrained from dispossessing the plaintiff or raising any construction over the suit land. No relief was claimed against Sukh Ram but he was made a party because it was alleged that Chandu, father of the plaintiff, and defendant No.2 were tenants under Smt. Rai Dei and Sukh Ram and that tenancy rights had matured into ownership. It was also stated in the written statement filed by the present petitioner that he had purchased the share of Sukh Ram in the suit land vide sale deed registered on 21.5.1968. Sukh Ram was served through his son Ranjeet Singh and in the report of the process server, it was stated that the son is a family member and resides with the father. Thereafter, the order dated 22.5.1995 was passed whereby defendant No.1 Sukh Ram was proceeded against ex-parte. 3. The suit proceeded and issues were framed on 29.5.1996. In the meantime, the plaintiff died and his legal representatives were brought on record. The suit was dismissed in default on 3 17.8.1998. Thereafter, an application for restoration of the suit was filed. During the pendency of the restoration application, original defendant No.1, Sukh Ram, also died and notices were issued to his legal representatives. They were not served personally but by way of publication. Finally, the suit was restored vide order dated 24.7.2006 and again it was directed that notices be issued to the legal representatives of defendant No.1. Three of the legal representatives were initially served and proceeded against ex-parte and thereafter two other legal representatives were served and appearance on behalf of these two legal representatives was put in by Sh.Vikesh Atri on 20.7.2007. 4. Thereafter, on 4.8.2007, an application was filed by all the legal heirs of Sukh Ram praying that the ex-parte orders dated 22.5.1995 and 31.5.2007 be set-aside. In this application, it was alleged that Sukh Ram had never been served properly and that later the legal representatives of Sukh Ram were wrongly served through publication. It was also stated that the legal representatives were out of Station and could not inform their counsel and thus wrongly 4 proceeded against ex-parte on 31.5.2007. The learned trial Court allowed the application and thereafter the legal representatives filed written statement and counter claim. Hence, the present petition. 5. At the outset, it may be stated that on perusal of the file, I find that Sukh Ram himself was served through Sh. Ranjeet Singh, his son. The learned trial Court, while recalling the ex-parte order after 12 years, has come to the conclusion that the report was defective inasmuch as that in the report it was not stated that Ranjeet Singh was a major or adult member of the family. It was further stated that there is nothing on record to show that any person has identified Sh. Ranjeet Singh to be the son of Sukh Ram. 6. I have myself gone through the record and I find that Ranjeet Singh has signed the original summons after having received the copy of the plaint and the summons. In the application, not even a word has been stated that signatures are not of Ranjeet Singh. In the affidavit filed alongwith the application in August, 2007, the age of Ranjeet Singh is stated to be 43 years. Therefore, in the year 1995, he would have been 31 years of age and was definitely a major. On 5 perusal of the record, I find that it is more than obvious that legal heirs of Sukh Ram were well aware of the litigation. True it may be that in the proceedings for restoration of the suit they were finally served through publication but I find that various attempts were made to serve the legal heirs. Even, during the course of these proceedings Sagri Devi widow of Sukh Ram was served through Sh. Ranjeet Singh on 22.6.2002. Similarly, Ranjeet Singh himself was served in the restoration application on 1.6.2002. In the summons issued to Ramesh Chand, brother of Ranjeet Singh, report is that he is working in HPPWD and posted at Barthin, the witness to this report is none other than Ranjeet Singh. Similarly, in the summons issued to Reena Devi, it is reported that Reena Devi is married and lives in the house of her in-laws and this information has been given by none other than Ranjeet Singh who has signed the summons as a witness. In respect of Kamla Devi, the report is that there is no daughter of Sukh Ram by this name and witness to this report is also Ranjeet Singh. It is, thus, apparent that Ranjeet Singh, if not the other legal representative, was fully aware of the litigation. He was not only aware about the 6 original suit but also about the application filed for restoration. Therefore, the averments made in the application that they were not aware about the proceedings are absolutely false. Therefore, no relief could have been granted to them. Even notices of this petition were issued on two occasions, one before admission and second after admission, but they have not cared to appear in this Court. 7. In view of the above discussion this petition is allowed and the order of the learned trial Court is set-aside and Sukh Ram and other legal heirs are ordered to be treated as ex-parte. The written statement and counter claim filed by them will not be taken into consideration while deciding the matter. The plaintiff (respondent No.6 herein) and defendant No.2 (petitioner herein), who represented through their counsel, are directed to appear before the learned trial Court on 11th October, 2011. Since the suit relates to the year 1994, the learned trial Court is directed to ensure that the same is decided latest by 31st March, 2012. The learned trial Court, if necessary, can hear the case on day to day basis. No summons will be issued to the legal heirs of 7 Sukh Ram since they have not even cared to appear in this Court despite their service twice. 8. The petition is allowed in the aforesaid terms. No costs. September 15, 2011 (Deepak Gupta) PV Judge