CR No. 2391 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 2391 of 2008 Date of decision:- 20.8.2010 Ashok Kumar ......petitioner vs. Smt. Rama and others ......respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Rahul Sharma Advocate for the petitioner Mr. Amit Jain, Advocate for respondents. HEMANT GUPTA, J (ORAL) Challenge in the present revision petition is to the order passed by learned trial Court on 12.3.2008 whereby an application filed by applicant- respondent No.1 to set aside the ex-parte judgment and decree dated 26.8.1989 was allowed. The plaintiff-petitioner filed a suit for specific performance of an agreement dated 27.9.1982 on 4.1.1989. The agreement, the basis of the suit, was purportedly entered by Joginder Pal-husband of respondent No.1 and father of respondents No. 2 to 4 in respect of the property at Dhaliwal, Tehsil and District, Gurdaspur for a sale consideration of Rs. 20,000/-. Rs. 15,000/- was said to be paid by the plaintiff to Joginder Pal as earnest money and that the sale deed was to be executed on or before 26.9.1985 on payment of balance sale consideration. Joginder Pal died on 24.2.1986. Thereafter, the present suit was filed in which applicant-respondents were proceeded ex-parte after the service of summons by Munadi. The suit was decreed on 26.8.1989. The decree stands executed as well. Respondent No.1 filed an application for setting aside of the said CR No. 2391 of 2008 -2- decree on 12.3.2008 which had been allowed by the learned trial Court. Before adverting to the facts of the case, it may be noticed that the father of the plaintiff-petitioner, Ashok Kumar has purportedly scribed a Will dated 6.2.1986 of Joginder Pal. It is the case of the respondent No.1 that after the death of her husband, she left Dhaliwal and went to Chandigarh. From the perusal of the judgment and decree dated 26.8.1989, it is apparent that defendants No. 3 and 4 were minors and without appointing Court's guardian the decree for specific performance has been granted against the said minors. Learned trial Court has given the detailed reason to return the finding that the applicant-respondents were not served and that she had no knowledge about the pendency of the suit including the finding that she has not appeared in the earlier suit for injunction, filed by the plaintiff-petitioner. It was found that respondent No.1 was never served because, even if, summons sent are not received back, the substitute service ought not to be ordered without the satisfaction of the Court that Smt. Rama could not be served in ordinary manner. Learned counsel for the petitioner has vehemently argued that the application for setting aside the decree is barred by limitation as the respondent was aware of the pendency of the suit. Such knowledge is attributed, in view of the written statement filed by Smt. Rama, in the earlier suit for injunction. The fact that the plaintiff has got a police help to take possession of the building; that the plaintiff has demolished and reconstructed the same; that the defendant is the owner of the other houses in Dhaliwal; and she has executed a sale deed in the year 2004. It is also argued that the respondent has not pleaded that how she derived knowledge of the decree and that she has not discharged the onus to prove the fact of the knowledge of the decree and of the fact that she was not properly served. It is also pointed out that Ved Praksash has been examined as witness who has CR No. 2391 of 2008 -3- deposed that the applicant-respondent No 1 has told him about the knowledge of the Suit. After going through the order passed by learned trial Court and the record of the case, I am of the opinion that it is a case where the plaintiff has committed fraud in obtaining decree against the respondents. It is the case of the respondents in her affidavit that father of the petitioner was scribe of the will dated 6.2.1986. Husband of Smt. Rama died on 24.2.1986 and that she had three minor children. She shifted to Chandigarh and Ashok Kumar managed ex-parte decree by giving wrong address. She came to know about the decree in February 1998 and that her husband has given the demised premises to Ashok Kumar to look after the same and that Ashok Kumar has cheated her. She categorically deposed that she has not engaged Sh. Balbir Singh Janjua, Advocate nor she was aware of any stay granted by any Court. She has stated in her affidavit that she filed eviction petition in respect of another premises against Sh. Ashok Kumar which was allowed by the learned Rent Controller on 22.1.2002. In the cross-examination, she has admitted the visits to Dhaliwal occasionally and also the fact that she has sold certain properties. She denied that the written statement filed in the suit for injunction through Sh. Balbir Singh Janjua, Advocate bears her signature. Sh. Balbir Singh Janjua, Advocate through whom she purportedly filed written statement in the earlier suit for injunction could not identify that the respondent was the person who signed the written statement and that he does not know Smt. Rama personally. The facts on record shows fraudulent conduct of proceedings by the petitioner. Though the agreement is purportedly dated 27.9.1982 and on payment of Rs. 15,000/- as earnest money out of the total consideration of Rs. 20,000/- but the execution of sale deed was deferred for the period of three years i.e. 26.9.1985. It is unbelievable that on payment of major portion of the sale consideration, the CR No. 2391 of 2008 -4- execution of sale deed would be deferred for a period of three years. Still further, the suit for specific performance was filed not during the life time of Joginder Pal but after his death on 4.1.1989. Without examining the question of such suit, being within the period of limitation, the fact remains that the suit for specific performance has been filed after more than 6 years of payment of major part of the sale consideration. Two of defendants were minors when the suit was filed. Such defendants could not be proceeded ex-parte even if Smt Rama was served. It was incumbent upon the plaintiff to sue the minors through the Court guardian. Having failed to do so, the proceedings, leading to the decree for specific performance, cannot be said to be proper. The father of the petitioner is stated to be scribe of the Will of Joginder Pal, husband of Smt. Rama. The Will is dated 6.2.1986 and it appears, the agreement to sale was propounded to deprive the defendants of their property in a fraudulent manner. Exhibit A-1 is the copy of the judgment obtained by Smt. Rama against the present petitioner in respect of another premises situated at Dhaliwal in proceeding under Section 13 of the East Punjab Urban Rent Restrictions Act, 1941. The said petition was filed by Smt. Rama in September 1997 in respect of the premises rented out to the respondent in April 1988. In the aforesaid case also, the petitioner relied upon an agreement to sell dated 2.11.1991 purportedly signed by Ashwani Kumar one of the sons of Joginder Pal. The Court has returned a finding that the agreement is a forged agreement and consequently, the Court ordered the ejectment of the present petitioner. I do not find any of the arguments, raised by learned counsel for the petitioner tenable. The ex-parte judgment and decree obtained by the petitioner appears to be the result of fraud. The conduct of proceedings by the petitioner lacks bona fides. The evidence led by the parties have been taken into CR No. 2391 of 2008 -5- consideration by learned trial Court to set aside the ex-parte decree granted against the defendants-respondent herein. The knowledge of the decree is on assumption and presumption. Keeping in view the background of the case, plea of the petitioner in another case and the principle that the parties should contest the lis on merits and not on technicalities, the ex-parte decree has been rightly set aside. The reasoning given by learned trial Court cannot be said to be suffering from any patent illegality or material irregularity. Consequently, I do not find any reason to interfere in the order passed by learned trial Court. Revision petition is dismissed with cost assessed at Rs. 2,000/- (HEMANT GUPTA) JUDGE 20.8.2010 preeti