Civil Revision No. 7181 of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 7181 of 2011 Date of decision. 23.11.2011 Smt. Jagdish Kaur Bagga .... Petitioner Versus Jarnail Singh ...... Respondent CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Pardeep Rajput, Advocate for the petitioner. **** Vijender Singh Malik, J. Smt. Jagdish Kaur Bagga, had brought a suit for possession by way of specific performance of agreement of sale dated 28.09.2002 in respect of a house against Jarnail Singh, defendant. The said suit ended in ex-parte judgment and decree dated 27.10.2007 against Jarnail Singh, defendant, who had filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte judgment and decree on 10.10.2008. The said application has been allowed by learned Additional Civil Judge (Senior Division) Tarn Taran vide order dated 01.10.2011. Civil Revision No. 7181 of 2011 --2-- It is this order dated 01.10.2011 (Annexure P-4), which is challenged by way of this revision petition brought under the provisions of Article 227 of the Constitution of India by Smt. Jagdish Kaur Bagga, plaintiff. The brief facts required to be noticed for disposal of this revision petition are as under:- In the suit brought by Smt. Jagdish Kaur Bagga for possession by way of specific performance of agreement of sale dated 28.09.2002, Jarnail Singh had appeared in the court through Shri Pankaj Joshi, Advocate and had filed written statement. The claim of Jarnail Singh in his application under Order 9 Rule 13 CPC is that he could not contact his counsel thereafter on account of heart problem, weakness and old age. According to him, his counsel pleaded no instructions on his behalf on 29.11.2006 without informing him and consequently he was proceeded against ex-parte by the trial court on 29.11.2006 without giving notice to him. He has further claimed that the court thereafter passed an ex-parte judgment and decree against him on 27.10.2007. He has claimed that he came to know of the ex-parte judgment and decree when he received a notice from the executing court in pursuance of which he appeared in the court on 08.10.2008 and came to know of the said decree. He has then filed the application in hand on 10.10.2008. The application was opposed by the decree holder. She has claimed the application to be barred by limitation. She has denied the case set up by the defendant-judgment debtor of sickness, his ailment and old age. According to the decree holder, there were no sufficient grounds for Civil Revision No. 7181 of 2011 --3-- setting aside the ex-parte judgment and decree. On the pleadings of the parties, the following issues were framed by the executing court:- “1- Whether the judgment and decree dated 27.10.2007 is liable to be set aside ?OPA 2- Relief.” The evidence was led by the parties and hearing learned counsel for the parties, learned trial court vide order dated 01.10.2011 has allowed the application under order 9 Rule 13 CPC and has set aside the ex-parte judgment and decree dated 27.10.2007. Aggrieved by the aforesaid order, the plaintiff has brought this revision petition. I have heard Shri Pardeep Rajput, learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has contended that the only ground on which learned trial court has allowed the application of the respondent and has set aside the judgment and decree dated 27.10.2007 is of his heart problem, weakness and old age. According to him, mere statement of the respondent has been accepted by learned trial court without insisting of any documentary medical evidence. He drew my attention to para no.9 of the impugned order to contend that the only ground that weighed with learned trial court in favour of the respondent is of his illness, which is not proved by leading any documentary medical Civil Revision No. 7181 of 2011 --4-- evidence. He has submitted that evidence led by the respondent of his illness, was not believable and learned trial court has wrongly placed reliance on the same. According to him, learned trial court has , thus, erred in allowing the application and consequently has prayed for acceptance of the revision petition and setting aside the impugned order. It is true that learned trial court has relied heavily on the oral statement of the respondent regarding his illness. However, there are other reasons to support the case of the respondent. It is a case where the respondent had appointed Shri Pankaj Joshi, advocate as his counsel to represent him. At the stage of trial, learned counsel for the respondent pleaded no instructions on behalf of the respondent. It was required of the counsel for the respondent that he should have informed the respondent of his intention to plead no instructions on his behalf. The court even did not ask the counsel pleading no instructions as to if he had informed his party of his move. Even if the court did not ask him in this regard and there is nothing on the record to suggest that he had informed the respondent of his intention to plead no instructions on his behalf in the suit, the court should have given notice to the respondent before proceeding ex-parte against him. The court, thus, had fallen in error in proceeding ex-parte against the respondent on his counsel pleading no instructions to appear on his behalf. Therefore, this is an additional but valid reason to hold that the respondent had sufficient ground for the setting aside of the ex-parte judgment and decree and for this court to uphold the impugned order. Civil Revision No. 7181 of 2011 --5-- Keeping in view the aforesaid reason, I find no merit in the revision petition and dismiss the same. 23.11.2011 (VIJENDER SINGH MALIK) dinesh JUDGE