C.R. No.2802 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.2802 of 2009 (O&M) Date of Decision: 6.9.2010 Baldev Singh and others ……Petitioners VERSUS Gram Panchayat ……Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Harkesh Manuja, Advocate for the petitioners. None for the respondent. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. Petitioners have invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated 9.4.2009 passed by Additional District Judge, Panipat, whereby the decree dated 25.11.1985 was set aside. C.R. No.2802 of 2009 (O&M) -2- 2. In the present case, vide order dated 18.5.2009 of this Court notice of motion was directed to be issued against the respon- dent-Gram Panchayat. This Court vide order dated 14.10.2009 held that service is complete on the respondent. None is appearing on behalf of the respondent despite of service on the respondent. 3. Brief facts of the present case inter-alia are that respon- dent – Gram Panchayat moved an application for ejectment of the petitioners herein, under Section 7 of the Punjab Village Common Lands Act (for brevity ‘the Act’) before the learned Assistant Collec- tor, Ist Grade, Panipat. Learned Assistant Collector vide order dated 19.12.1980 directed ejectment of the petitioners herein. Feeling ag- grieved from the ejectment order dated 19.12.1980, an appeal was preferred by the petitioners herein before the learned Collector, Kar- nal and the same was dismissed by the learned Collector vide judg- ment dated 18.5.1981. Petitioners filed Civil Suit No.641 of 1983 in the Court of Sub-Judge, Ist Class, Panipat challenging the ejectment order dated 19.12.1980 passed by learned Assistant Collector, Ist Grade, Panipat as well as learned Collector’s order passed in appeal on 18.5.1981. Defendant – respondent herein remained absent de- spite of service, hence, learned Civil Judge vide order dated 15.12.1983 directed ex-parte proceedings against the respondent/de- fendant. However, vide order dated 9.3.1984, plaint was directed to be returned for presentation in the proper Court. Order dated C.R. No.2802 of 2009 (O&M) -3- 9.3.1984 was challenged by the present petitioners/plaintiffs before the Appellate Court and Appellate Court vide judgment dated 3.9.1984 allowed the appeal and set aside the order dated 9.3.1984 and remanded the matter to learned Civil Judge to decide it on merit in accordance with law. Ultimately, an ex-parte decree was passed by the learned Civil Judge on 25.11.1985 declaring the judgment dated 19.12.1980 as well as judgment dated 18.5.1981 non est and set aside the ejectment order as well as Appellate Order thereon. Petitioners/plaintiffs produced judgment of the learned Civil Court dated 25.11.1985 before the learned Assistant Collector, Ist Grade, Panipat where execution was pending for the ejectment of the peti- tioners/plaintiffs. Learned Executing Court/Assistant Collector, Ist Grade, Panipat vide order dated 23.8.1990 dismissed the execution by observing that ejectment order passed on 19.12.1980 and Appel- late order dated 18.5.1981 had already been set aside by the learned Civil Judge vide judgement and decree dated 25.11.1985. Thereaf- ter, nothing was done for long 13 years. However, on one fine morn- ing i.e. on 17.3.2003, defendant-respondent herein moved an appli- cation under Order 9 Rule 13 C.P.C. for setting aside the ex-parte decree dated 12.11.1985. Learned Civil Judge vide judgment dated 30.11.2007 dismissed the application under Order 9 Rule 13 C.P.C. having observed that the said application is hopelessly time barred and defendant – Gram Panchayat has acquired the knowledge of the C.R. No.2802 of 2009 (O&M) -4- Civil Court’s decree in the execution proceedings where ex-parte judgment and decree was produced. Feeling aggrieved from the re- jection of the application under Order 9 Rule 13 C.P.C. vide judgment dated 30.11.2007, respondent – Gram Panchayat preferred an ap- peal. Appellate Court vide impugned order dated 9.4.2009 has ob- served that application under Order 9 Rule 13 C.P.C. is hopelessly time barred, however, set aside the ex-parte decree saying it was ob- tained by collusion and fraud. 4. Mr. Harkesh Manuja, learned Counsel for the petitioners vehemently argued that in the proceedings under Order 9 Rule 13 C.P.C. once Court finds that application under Order 9 Rule 13 C.P.C. is hopelessly time barred, then Court below has absolutely no jurisdiction to set aside the ex-parte judgment saying it is the out- come of fraud. It is further argued that learned Appellate Court has no other option except to dismiss the appeal. 5. Undisputedly, judgment and decree passed by the learned Civil Judge, Panipat dated 25.11.1985 was produced by the petitioners/plaintiffs before the Executing Court hearing the execution for the ejectment of the petitioners on 23.8.1990. Undisputedly, exe- cution was dismissed by the Executing Court on 23.8.1990 in view of the decree being passed by the Civil Court setting aside the eject- ment order passed against the petitioners under Section 7 of the Act. 6. In the opinion of this Court, if a party complaining the fraud is in a position to discover the fraud and having discovered the C.R. No.2802 of 2009 (O&M) -5- fraud does not take action for long, in the present case for 13 years, then plea of fraud looses its importance and can not be permitted to be taken at the belated stage. Had there been any fraud as alleged by the defendant/respondent, they could have filed application under Order 9 Rule 13 C.P.C. or could have initiated appropriate legal pro- ceedings challenging the ex-parte decree dated 25.11.1985 soon af- ter the execution proceeding was dismissed on 23.8.1990. Since, respondent did not take any action for long 13 years now they can not be permitted to agitate the question of fraud and that too in a pro- ceeding under Order 9 Rule 13 C.P.C. especially when defendant was found having knowledge about the filing and pendency of the civil suit and passing of the ex-parte decree in a civil suit. 7. In view of the above, the impugned judgment dated 9.4.2009 to the limit where appellate Court finds that decree dated 25.11.1985 is the outcome of fraud and collusion is set aside and as far as it relates to the dismissal of application under Order 9 Rule 13 C.P.C. is confirmed. 8. Petition stands disposed of accordingly. ( ALOK SINGH ) 06th September, 2010 JUDGE ashish