Civil Revision No. 1714 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1714 of 2010 (O&M) Date of decision: May 14, 2010 Sardul Singh and others .. Petitioners v. Gopal Krishan and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Vikas Bahl, Advocate for the petitioners. Mr. Manuj Nagrath, Advocate for respondent No. 1. .. Rajesh Bindal J. The plaintiffs are before this court challenging the order dated 19.2.2010, passed by the learned court below, whereby while reversing that of the trial court dated 9.2.2007, the application filed by respondent No. 1-defendant (hereinafter described as `the respondent') for setting aside of the ex-parte judgment and decree dated 26.4.2004, was accepted. Briefly, the facts are that on 4.4.1988, the petitioners-plaintiffs filed a suit for possession on the basis of ownership and claiming that the respondent along with others were in illegal possession thereof. The respondents appeared and filed written statement. After the evidence of the petitioners-plaintiffs was led and during the course of evidence of the defendant/respondent, application was filed for comparison of the thumb impression of one Dilbagh Singh, which was dismissed on 7.11.1991. The aforesaid order was challenged by the respondent before this Court by filing Civil Revision No. 794 of 1992. During the pendency of the aforesaid petition in this court, passing of final order was stayed. Proceedings in the suit continued and the entire evidence of the respondent was led. With the creation of new Court at Baba Bakala, all the cases pertaining to that area were transferred to the newly created court and the parties were to appear in the transferee court on 7.11.1994. The Civil Revision filed by the respondent was dismissed by this court on 13.7.2001. Even thereafter, the respondent did not put in appearance before the court at Baba Bakala and was ultimately directed to be proceeded against ex-parte on 16.4.2004 and thereafter while hearing ex-parte Civil Revision No. 1714 of 2010 [2] arguments, decree was passed in favour of the petitioners-plaintiffs on 26.4.2004. After passing of the aforesaid decree, the respondent filed application in the trial court on 20.9.2004 praying for setting aside thereof, which was dismissed on 9.2.2007. However, the appeal filed by the respondent against the aforesaid order was accepted by the learned lower appellate court on 19.2.2010. It is against this order, passed by the learned lower appellate court, the petitioners-plaintiffs are before this Court. Learned counsel for the petitioners-plaintiffs submitted that in the case in hand, the petitioners-plaintiffs are running from pillar to post for the last more than two decades for getting possession of the property owned by them. In the suit filed by the petitioners-plaintiffs, the plea raised by the respondent was that he was in adverse possession of the property in question. The delay always suited him, as he was in possession of the property and in fact with all his designs, the respondent had been able to delay the proceedings by one way or the other. He submitted that there was no ground available with the respondent for getting the ex-parte decree passed against him set aside as he was well within the knowledge of the proceedings against him, in which he was participating and it was all of a sudden that he stopped appearing, though he had complete knowledge thereof. If under those circumstances, a party in the suit is directed to be proceeded against ex-parte, the same cannot possibly be set aside. The admitted position on record is that the respondent had appeared in the suit filed by the petitioners, filed written statement and participated in the evidence being led by the petitioners. During the course of his evidence, he had challenged one adverse order passed against him before this court by filing the Civil Revision, which was decided way back on 13.7.2001 in the presence of his counsel. When the case was transferred from the court at Amritsar to the newly created court at Baba Bakala, counsel for the respondent was present in the court and the next date of hearing was well within his knowledge. Even in the transferee court, the respondent was represented by a counsel. In any case, it is the admitted position on record that he was in knowledge of the transfer of the proceedings from Amritsar to Baba Bakala. Once that is so, there is no reason for him not to have kept a track thereof for almost a decade, where the proceedings were transferred on 7.11.1994 and the ex-parte decree was passed on 26.4.2004. The ground, which is sought to be raised by the respondent is that his counsel had advised him that he will receive notice from the transferee court has no legs to stand as the respondent had already put in appearance in the suit filed by the petitioners-plaintiffs and thereafter it was his duty to keep a track thereof. Civil Revision No. 1714 of 2010 [3] Even for the purpose of hearing of application for setting aside of ex-parte decree, the date of knowledge has not been properly proved on record as merely a copy of the summon was produced, which was not exhibited and was merely a marked document. The same does not, in any manner, show that prior to that, the respondent did not have the knowledge of the pendency of the proceedings. The conduct of the respondent is further evident from the fact that in the application for setting aside of ex-parte decree filed on 20.9.2004, it was stated that the Civil Revision filed by him in this court was still pending and there was interim stay therein, whereas the same stood dismissed on 13.7.2001. Another contention raised by learned counsel for the petitioners was that a party to the proceedings before the court is not permitted to challenge the contents of an order in the higher court as there is presumption of truth attached therein. The error, if any, has to be pointed out and get corrected from the court concerned. In the present case, the respondent sought to point out the error, which prima facie was accepted by the learned court below regarding marking of presence of his counsel before the court at Baba Bakala. In support of the contentions, reliance was placed upon Bank of Bihar v. Mahabir Lal and others, AIR 1964 SC 377; Hyderabad Industries v. Ashok Kumar Gupta, 1997(2) RCR (Civil) 28; Ajita Sharma @ Sweety @ Babi v. Rakesh Kumar Sharma, 1998(2) RCR (Civil) 565; New Bank of India, New Delhi v. M/s Marvels (India), 2002 (1) RCR (Civil) 566 and Sant Ram v. Smt. Raj Bhardwaj, 2006(3) RCR (Civil) 730. On the other hand, learned counsel for the respondent submitted that after the closure of evidence by the petitioners-plaintiffs on 24.3.1990, during the course of evidence of the respondent, one of the orders passed against him on 7.11.1991 was challenged before this court, in which during the pendency of the petition, passing of final order was stayed. Thereafter, the evidence of the respondent was closed on 2.8.1994 and the matter was adjourned for rebuttal evidence and arguments. On 26.10.1994, it was adjourned for 7.11.1994 and on the next date, the matter was fixed before the court at Baba Bakala. The respondent having not received any notice from the transferee court, did not appear there for the reason that his counsel had advised him that he will receive a notice from the transferee court and then only he has to put in appearance. While referring to Rules 4 and 5 of Chapter 13, Volume-I of the Punjab and Haryana High Court Rules and Orders, it was submitted that in case of transfer of a case from one court to another, the party is required to be informed. For the purpose, reliance was placed upon Reena Sadh v. Anjana Enterprises, 2008(3) RCR (Civil) Civil Revision No. 1714 of 2010 [4] 62. As regards error in the recording of presence of counsel for the parties before the court at Baba Bakala, it was submitted that there is apparent error therein as Mr. V.K.S. Malhotra, Advocate had earlier appeared for the plaintiffs, however, later on he was shown to be counsel for the defendants. On many other dates as well, without mentioning the names of the counsels, presence had been marked as “counsel for the parties”, which is not correct. He further submitted that in the present case, the entire evidence of the parties is already over. The case was fixed for rebuttal evidence and arguments. In case, the petitioners- plaintiffs want to lead any evidence in rebuttal, they may be given opportunity therefor and thereafter the matter may be fixed for arguments. The learned court below may be directed to dispose of the same within a time frame as the effort of the respondent is not to delay the proceedings. Heard learned counsel for the parties and perused the paper book. The admitted facts on record are that the petitioners-plaintiffs filed a suit against the respondent and others, in which the respondent is the only contesting party. After service, the respondent had put in appearance in the suit. The evidence of the parties was led. The respondent, being aggrieved against an order passed by the trial court on 7.11.1991 dismissing his application for examination of thumb impression of plaintiff-Harjit Singh, filed Civil Revision No. 794 of 1992 in this court, in which during the pendency thereof, passing of final order was stayed, as a result of which during the pendency of the revision before this court, the entire evidence of the petitioners-plaintiffs was completed. Even the respondent completed and closed his evidence on 2.8.1994 and thereafter, the case was being adjourned for rebuttal evidence and awaiting the orders from this court. Last time, the case taken up by the court at Amritsar was on 26.10.1994, when it was adjourned to 7.11.1994. On 7.11.1994, on account of setting up of new court at Baba Bakala, in terms of the general order passed, all the files pertaining to that area were transferred to the newly created court and it was taken up for hearing by the Additional Senior Sub Judge, Baba Bakala on 7.11.1994. Though the order sheet shows the presence of parties, however, this fact is sought to be disputed by the respondent. The Civil Revision filed by the respondent before this court was dismissed on 13.7.2001 in the presence of counsel for the parties. Still respondent No. 1 did not deem it appropriate to place that order before the court below as with the dismissal of the petition filed by him, the interim stay granted, stood vacated. The position even with the petitioners was also the same, as the order was placed before the court below for the first time on Civil Revision No. 1714 of 2010 [5] 26.2.2004 by the counsel, who appeared for the petitioners-plaintiffs. It was ultimately on 16.4.2004 that the respondent was directed to be proceeded against ex-parte, as no one had appeared till 3.30 P.M. and finally, the ex-parte decree was passed in favour of the petitioners on 26.4.2004 for setting aside of which the application was filed by the respondent on 20.9.2004 claiming that he got the knowledge of passing of the ex-parte decree when he received notice in the execution proceedings on 28.8.2004 and from the date thereof, the application was within limitation. The application filed by the respondent was dismissed by the trial court, however, in appeal the order was reversed and the ex-parte judgment and decree against the respondent was set aside. In the present petition, the issue before this court is as to whether there was any justifiable ground available with the respondent for setting aside of the ex-parte decree passed against him on 26.4.2004. The grounds sought to be raised for the same are that no notice was received by the respondent from the transferee court for appearance, which was mandatory. In fact, the respondent never appeared before the transferee court and the presence of his counsel marked in various orders passed was on account of some error, for which he should not be made to suffer. Reliance of learned counsel for the respondent on Rules 4 and 5, Chapter 13, Volume-I of the Punjab & Haryana High Court Rules and Orders is totally mis-placed. The same are applicable in the cases where a subordinate court sends a case to the District Judge with an application for its transfer on various grounds enumerated therein. If on such application, the case is transferred that the parties are to be informed about the transferee court and the next date fixed for appearance. Another eventuality is transfer of a case on an application by either of the party. In that also, the same process is to be followed. In the present case, the facts are altogether different. It is a case in which the respondent had been appearing throughout in the proceedings before the court at Amritsar. Admittedly, last date on which he appeared through counsel was on 26.10.1994 when the case was adjourned to 7.11.1994. It was on account of creation of a new court at Baba Bakala that all the cases pertaining to that area were transferred to the newly established court. As to whether the respondent was in knowledge of transfer of the proceedings to Baba Bakala from Amritsar, the contents of the application filed by the respondent for setting aside of ex-parte judgment and decree would be relevant. The same are extracted below: “2. That the above mentioned suit was pending at Amritsar and in this case, final order was stayed by the Hon'ble Punjab and Haryana Civil Revision No. 1714 of 2010 [6] High Court. 3. That the suit was transferred from Amritsar to Baba Bakala, but the applicant did not receive any notice regarding the transfer of the suit and as such, never engaged any counsel at Baba Bakala to appear on his behalf. 4. That counsel for the applicant Shri T. S. Virk, Advocate has never attended the court at Baba Bakala. 5. That counsel for the applicant has told him that he will get notice regarding the transfer of the suit from the court at Baba Bakala but the applicant has never received any notice regarding the transfer of the above mentioned suit. xx xx xx 7. That the applicant has never appeared in the court at Baba Bakala nor his counsel has ever appeared before the court at Baba Bakala as the final order in this case was stayed by the Hon'ble High Court and as such, the applicant has never engaged counsel at Baba Bakala and no power of attorney was given to any counsel to appear on his behalf in the court at Baba Bakala.” A perusal of the aforesaid contents of the application filed by the respondent shows that inspite of the revision petition filed by him having been dismissed by this court on 13.7.2001, still in the application it was mentioned that in the proceedings pending before this court, passing of final order had been stayed. The ground raised in the application was that the respondent was never informed about the transfer of the case. His counsel at Amritsar had informed him that he will receive a notice from the court at Baba Bakala. As no notice was received, he did not appear before the court at Baba Bakala. The case stood transferred and the first date of hearing at Baba Bakala was 7.11.1994. The suit was decreed almost a decade thereafter on 26.4.2004. In the meantime, even on 13.7.2001, revision petition filed by the respondent before this court challenging an interim order passed against him also stood rejected, but still the respondent did not think appropriate to enquire from his counsel or from the court even at Amritsar about the status of his case. Inspite of an admitted fact on record that the respondent was informed by his counsel that he would be receiving a notice from the transferee court at Baba Bakala about the date of hearing, meaning thereby the transfer of case from Amritsar to Baba Bakala was within the knowledge of the respondent, still no effort was made for finding out the status thereof at Baba Bakala also. If the respondent-defendant chose to rely only on his counsel Civil Revision No. 1714 of 2010 [7] regarding his getting notice from the court at Baba Bakala and could wait therefor for a decade, then he is to be blamed for the consequence. The purpose of issuance and service of notice in a suit or proceedings before any authority is to inform him about the case against him so that he could defend the same. Once the proceedings in a case are in the knowledge of the party, he cannot be permitted to take a stand that on transfer of case to a newly set up court, he should have been served the notice afresh especially when on a date prior the date fixed in the transferee court, admittedly the counsel for the respondent-defendant was present in the transferor court. Another important fact in the present case being that even after dismissal of his petition in this court and vacation of interim stay as well, the respondent-defendant did not take any step to contact his counsel in the court below or enquire about the status of the case for about three years. Courts always come to the rescue of the vigilants who avail of appropriate remedies immediately when aggrieved of. Stale claims are always rejected. It is for the party concerned to look after their interests in the pending litigation. Entire burden cannot be put on the counsel. The cause shown by the respondent-defendant for non-appearance in courts at Baba Bakala, even if the contention of the counsel for the respondent- defendant regarding the wrong marking of presence of counsel is considered, cannot be said to be sufficient to set aside an ex-parte decree passed against him nearly a decade after the transfer of the case from Amritsar court to Baba Bakala. In Hyderabad Industries's case (supra), Delhi High Court in a similar case, where there was lapse on the part of a litigant in not enquiring about the status of the case for about 6 years did not find any reason to set aside the ex-parte decree passed against him. Relevant paragraph 10 thereof is extracted below: “10. On the basis of the contents of the application itself it is clear that the applicant after appointing Shri Bhartiya as his Advocate absolutely slept over the matter and took it for granted that the suit could never be decreed. There is nothing on record to show that the applicant after appointing the Advocate and after filing the written statement ever came to Delhi or ever enquired from his Advocate about the proceedings in the aforesaid suit. The written statement in the suit was filed on 25.3.1987. The suit was decreed ex parte on 13.10.93, almost more than six and half years after filing of the written statement. So far as the court is concerned it will proceed ex parte if the defendant after service does not appear or after appearance absents. The court has no other option. It is a different Civil Revision No. 1714 of 2010 [8] matter whether the suit after being proceeded ex parte is decreed or dismissed. But it is not the liability of the court to inform every time the parties about each and every date fixed in the suit. It is for the parties themselves to appear on the different dates fixed and be diligent enough to look after their own interests and to take care. If the applicant relied upon his Advocate, it was his own choice and this cannot be a ground for setting aside ex parte decree. In my opinion under the aforesaid facts and circumstances it cannot be held that the applicant was prevented by any sufficient cause from appearing when the suit was called on for hearing. From the order sheet it transpires that the last appearance of Shri Bhartiya, Advocate for defendant No. 3, was on 24.9.87. Thereafter on 30 dates this suit was listed for hearing and none appeared for the defendant. So it is clear that for six years the applicant neither made any enquiries in the court about the progress of the suit nor made any enquiry from its Advocate, about the progress of the suit. There is no averment in the applicant that after 24.9.87 any one for the applicant ever came to its Advocate to find out whether the suit was still proceeding or had been dismissed.” In Ajita Sharma's case (supra), this court refused to set aside an ex- parte judgment and decree finding that the judgment-debtor therein had the knowledge of proceedings even there was no formal service of notice on him as knowledge of the proceedings was found to be enough. Paragraph 4 thereof is extracted below: “4. Learned counsel for the appellant highlighted the fact that the appellant had not been served and these were just and sufficient grounds for setting aside the ex parte judgment and the decree. In the alternative he insisted that even if the appellant had been served, fresh notice should have been issued so that reconciliation proceedings had taken place. Taking up the first contention as to if the appellant had been served or not, it transpired during the course of arguments that appellant even had filed an application in this court for transfer of the case. In other words, the appellant was duly aware about the pending application under Section 9 of the Hindu Marriage Act. Indeed in these circumstances, it is unfair for the appellant to contend that she had not been served with the notice. The purpose of service of the notice is that the opposite party should know the case Civil Revision No. 1714 of 2010 [9] one has to meet and contest. If a person knows about the pending case and still ignores the said litigation, it would be wholly unfair for that person to urge that he had not been formally served.” The judgment in Reena Sadh's case (supra), cited by learned counsel for the respondent, is distinguishable on facts. In that case, the suit was transferred by the High Court to the court of District Judge. There were four defendants. Three were represented by a counsel, whereas one of them was not. She was not having knowledge of transfer of proceedings from the High Court to the court of District Judge. Ex-parte decree was passed against her and the application for setting aside thereof was dismissed by the trial court. It is in those facts that Hon'ble the Supreme Court opined that the transferee court is required to give notice to the parties for transfer of the case and also the next date of hearing for appearance. In view of the aforesaid discussion, the impugned order dated 19.2.2010, passed by the learned court below accepting the appeal against the order dated 9.2.2007, passed by the learned trial court, is set aside and the application filed by the respondent-defendant for setting aside of the ex-parte decree, is dismissed. The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge May 14, 2010 mk (Refer to Reporter)