Civil Revision No.3301 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3301 of 2008 (O&M) Date of Decision: 19.11.2009 Ram Kanwar ...Petitioner Vs. Tirlok & Ors. ...Respondents CORAM: Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.P.L.Verma, Advocate, for the petitioner. --- Vinod K.Sharma, J. (Oral) CM No.26893-CII of 2009 For the reasons stated in the application delay of 412 days in filing the application for restoration is condoned. Civil Misc. allowed. CM No.26894-CII of 2009 For the reasons stated in the application civil misc. is allowed. Case is restored to its original number. Civil Revision No.3301 of 2008 2 CR No.3301 of 2008 The petitioner along with proforma respondents No.2 and 3 claimed themselves to be the legal representatives of Bohru son of Gumani and on that basis claimed that they were owners in possession of agricultural land bearing Khewat No.631 Khatauni No.673 Rect No.113 Killa Nos. 25(7-10), Rect No.123 Killa No.5/1 (6-5) total measuring 13 kanals 15 marlas to the extent of their shares situated in the revenue estate of village Indri, Tehsil Nuh District Gurgaon. Ram Chander, the predecessor-in-interest of the respondent had filed a suit against Bohru predecessor-in-interest of the petitioner which was decided on 31.1.1972. An ex parte decree was passed against Bohru predecessor-in- interest of the applicants regarding the land in dispute. It was claimed that no notice of suit was served upon late Bohru, i.e. father of the applicants either by way of ordinary process or through registered post/Munadi. It was claimed that false report was obtained in collusion with the Process Server showing denial of summons/Munadi summons. The case set up by the petitioner was that it was within the knowledge of the predecessor-in- interest of the respondents that in case late Bohru appeared in court the plaintiff had no chance to get the decree in his favour and therefore, ex parte decree was managed. It was claimed that predecessor-in-interest of the petitioner did not have any knowledge about the case till his death for want of service. The applicant/plaintiffs claimed that they came to know about the decree on 18.12.2000 when they got the certified copy of the judgment and decree dated 31.1.1972 and thereafter moved an application for setting Civil Revision No.3301 of 2008 3 aside the ex parte decree. The application was contested where the arguments were denied. It was claimed that the petitioners were never in possession of the suit land. It was pleaded that Ram Chander and after his death his legal heir Tarlok i.e. respondent were in possession of the suit land. It was denied that the ex parte proceedings were managed. Other allegations were also denied. On the pleadings of the parties the learned trial court was pleased to frame the following issues:- 1. Whether the applicants have sufficient cause for setting aside the ex parte judgment and decree dated 31.1.1972? OPP 2. Whether the application is hopelessly barred by time? OPP 3. Relief. Both the parties led evidence. On appreciation of evidence application moved by the petitioners under Order 9 Rule 13 of the Code was ordered to be dismissed. Appeal also failed. Learned courts below found as a fact that the predecessor-in- interest of the petitioners was proceeded against ex parte on the basis of report endorsed on the summons which was issued for 8.6.1971. Learned trial court in order to resolve the controversy summoned the original file and thereafter came to the conclusion that the orders and the report entries on summons were required to be looked into by way of additional evidence. The learned court found that on the summons there was report that late Civil Revision No.3301 of 2008 4 Bohru was duly served, and that the copy of the plaint was also supplied to him. Summons bore the signatures of late Bohru. The learned court found that report dated 6.3.71 showed that the summons were duly served and late Bohru was in know of the pendency of the suit. Even report dated 8.6.71 showed that summons were served in the presence of Manohar Lal sarpanch of the village who had signed the summons but he was not produced in evidence by the applicants to prove that the summons were not served. Both the courts on appreciation of evidence held that late Bohru was rightly proceeded against ex parte. The learned court further found that Bohru died after many years of passing of the decree but nothing was shown that he had no knowledge of the suit. The learned court also found that the petitioners failed to prove that they came to know about the case only on 18.12.2000 as the certified copy of the judgment and decree showed that they applied for it on 21.11.2000. Thus, the learned court also found the application to be hopelessly barred by time. Learned counsel for the petitioner merely contended that this revision deserves to be allowed for the reason that it would be in the interest of justice that the petitioners be allowed to contest the case on merit. This plea cannot be accepted. Decree was passed on 31.1.1972, whereas the application for setting aside the ex parte decree was moved in 2005 i.e. after 33 years. Predecessor-in-interest of the petitioners lived for a number of years after the passing of the decree. Keeping in view the fact that the application for setting aside ex parte decree was not moved within limitation as the petitioners failed to Civil Revision No.3301 of 2008 5 prove their knowledge, even on merit no fault can be found with the findings recorded by the learned courts below, as service on late Bohru was duly proved. No merit. Dismissed. (Vinod K.Sharma) 19.11.2009 Judge rp