C.R. No. 5102 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 5102 of 2007 Date of Decision: July 13, 2009 Union of India …..Petitioner Vs. Bachan Singh and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Sangeeta Dhanda, Advocate for the petitioner. Mr.Premjit Kalia, Advocate for respondents No.4, 7 and 8. -.- M.M.S. BEDI, J. Union of India has sought the setting aside of order dated January 3, 2004 passed by Additional Civil Judge (Senior Division), Ajnala dismissing the application of the petitioner for setting aside the ex-parte decree dated December 22, 1995 and also the order passed by the Appellate C.R. No. 5102 of 2007 [2] Court dated January 19, 2007 dismissing the appeal against the order dated January 3, 2004. The brief background of the controversy involved is that the plaintiff- respondents had filed a suit on March 4, 1994 for possession of land measuring 80 kanals 7 marlas against Union of India, Ministry of Defence, on the ground that they had earlier filed a suit against Union of India in which Squ. Ldr. Senior Administrative Officer had appeared and made a statement on May 24, 1999 that acquisition proceedings had been started and papers had been sent to the higher authorities but no steps were taken either for acquisition of the land or for payment of the compensation but the land remained in possession of Union of India. The plaintiffs claimed that in 1994 the prevailing land in and around the land in dispute fetched Rs.5000/- per acre per annum and that the defendant- petitioner is bound to pay for the use and occupation charges at the said rate. The plaintiff- respondents reserved their right to take appropriate proceedings against the defendant- petitioner for that purpose but requested that possession be delivered to them. The defendant- petitioner was proceeded against ex-parte. Ex-parte evidence was produced including the order dated May 24, 1979 passed by Sub Judge Ist Class, Amritsar. Ex-parte decree for possession was passed against petitioner on December 22, 1995 by Civil Judge (Junior Division), Ajnala. The defendant- petitioner filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree on August 7, 1999 after a gap of more than four years, taking up the pleas that the Union of India had not been properly served; the land in dispute is C.R. No. 5102 of 2007 [3] in possession of base commander Air Force station, Raja Sansi; custodian of the property in dispute is the Defence Estate Officer, Jalandhar and he was not made a party; intimation had been sent to the Defence Estate Officer regarding his ex-parte decree and the officials of the department were being transferred from time to time but the intimation was received in the concerned quarter (base Commander Air Force Station, Raja Sansi) when the respondent- decree holders have filed execution application for execution of judgment and decree. In the application for setting aside the ex-parte decree, it was claimed that the defendant had been a tenant under the plaintiff- respondent and had been making payment of rent regularly; description of the land has not been properly given and decree-holder has obtained the decree relating to the land measuring 80 kanals 7 marlas but land on the spot is 72 kanals 7 marlas. The plaintiff- respondents contested the application on the grounds that in view of statement made on May 24, 1979, in the Court and the decree passed on the basis of said statement is binding on the petitioner/ defendant. As the petitioner has neither vacated the land nor paid compensation as such the ex-parte proceedings and the ex-parte decree is not liable to be set aside. The Additional Civil Judge (Sr. Divn.), Ajnala, vide order dated January 3, 2004 dismissed the application under Order 9 Rule 13 CPC filed by the petitioner after framing and adjudicating the following issues:- “1. Whether there are sufficient grounds to set-aside the judgment and decree dated 22.12.1995 passed C.R. No. 5102 of 2007 [4] against the applicant, passed by my Ld. Predecessor as alleged in the application? OPA. 2. Whether the application is time barred? OPR 3. Whether the application is not maintainable? OPR 4. Relief.” Under Issue No.1 it was held that the Defence Estate officer, Jalandhar Circle had filed written statement in the original suit and mere transfer of an officer was not a good ground for setting aside an ex-parte decree. Under issue No.2 it was held that the application was barred by time. Under issue No.3 it was held that the application was maintainable. After the dismissal of the application under Order 9 Rule 13 CPC, the appeal under Order 43 Rule 1 CPC was filed in the Court of District Judge, Amritsar. The Appellate Court held that it could not be believed that the Commander Air Force Base did not have any knowledge about the decree passed on December 22, 1995 merely because Union of India through Secretary, Ministry of Defence had been impleaded as a party because the suit was being contested by the defendant- petitioner by filing written statement and issues had also been framed. Ms.Sangeeta Dhanda, counsel for the petitioner has contended that the rights of the Union of India have been prejudiced by not providing a fair opportunity to it to contest the suit on merits. It was claimed that the decree of possession passed ex-parte against the defendant- petitioner will cause inconvenience to the defence activities. When questioned as to why no steps have been taken to acquire the land under the relevant provisions of C.R. No. 5102 of 2007 [5] law, the counsel was not able to satisfactorily explain the inaction on the part of the Union of India as to why no action was taken in consonance with the statement made on May 24, 1999 by the representative of defendant that steps were being taken for acquisition of the land and for payment of compensation to the petitioners. On the other hand, counsel for the plaintiff- respondents submitted that the plaintiff- respondents have not been paid any compensation for the land which is in possession of the petitioner. The Union of India wants to merely delay the suit for possession filed by the plaintiff- respondents. I have heard counsel for the petitioner as well as counsel for the respondents. It is not out of place to mention that the inordinate delay has been caused by the Union of India by adopting all the legitimate and illegitimate means being fed up with the casual fashion in which the matter is being treated, this Court was compelled to dismiss this petition for non- prosecution on September 29, 2008. On an application for restoration, the revision petition had been restored on October 17, 2008. Bachan Singh, Pal Singh, Tarlok Singh, respondent- plaintiffs No.1, 5 and 9 (wrongly mentioned as respondents No.1, 3 and 9) had died during the pendency of the proceedings without having been able to get possession of their land during their life time. Their Legal Representatives have been impleaded and served through affixation. It is apparent that some of the Legal Representatives have not yet been served merely because of non-filing of the process fee by the petitioner. Taking into consideration the provisions C.R. No. 5102 of 2007 [6] of Order 22 rule 1 CPC, I am of the opinion that the death of the original plaintiffs (hereinafter referred to as ‘plaintiff- respondents’) in the present case shall not cause the suit to abate as the right to sue still survives. The Legal Representatives of the original plaintiffs will be entitled to the benefits accruing from this order of the final decree subject to all just exceptions. It is apparent from the record that Union of India has been in possession of the suit land for a period much prior to year 1994. The land is admittedly owned by the plaintiff- respondents. On May 24, 1979, an assurance was given to the Court in a suit for possession filed by the plaintiff- respondents that the acquisition proceedings had been started and papers had been sent to the higher authorities but till date neither any notification has been issued nor any steps have been taken to acquire land. It is a glaring example where the constitutional rights of the plaintiff- respondents under Article 300-A of the Constitution of India have been violated. They have been deprived of their property without any authority of law. In 1994 the plaintiff- respondents had claimed that the land has got potential to fetch Rs.5000/- per acre per annum which at present will be much more. By seeking the setting aside of the ex-parte decree for possession passed on December 22, 1995, an attempt is being made by the Union of India to prolong the agony of the plaintiff- respondents in the garb of the Rules of natural justice. No doubt, the defendant- petitioner has got a right to contest the suit but at the same time, their long slumber and their causal approach and their authority which has been misused against public policy cannot be ignored. Fairness is the basic rule of justice but at the C.R. No. 5102 of 2007 [7] same time a mighty litigant cannot enjoy the luxury of litigation by depriving a citizen of his property without authority of law. Striking a balance between the rules of natural justice, fair trial of the suit and the prejudice being caused to the plaintiff- respondents on account of the slumber and delay on the part of the defendant- petitioner, it is deemed appropriate to set aside the ex-parte decree subject to payment of Rs.4 lacs as costs to be paid by the petitioner within a period of three months to the plaintiff- respondents (including the Legal Representatives of the deceased plaintiffs). In case the suit of the plaintiff- respondents has finally decreed, a sum of Rs.3 lacs will be adjustable towards the use and occupation without prejudice to the other rights of the plaintiff- respondents. Since the dispute is pending since 1994, a direction is issued to the trial Court to finally dispose of the suit within a period of one year after the next date of hearing. Parties are directed to appear before the trial Court on October 14, 2009 on which date the costs will be paid by the defendant- petitioner. The costs will be paid in the shape of bank draft in the names of surviving plaintiff- respondents and the Legal Representatives of the deceased plaintiffs whose names have already been included in the memo of parties. The trial Court will be entitled to disburse costs of Rs.3 lacs to the plaintiff- respondents (including the heirs of the deceased plaintiffs in proportion to their share in the land) and a sum of Rs.1 lac will also be disbursed in the similar proportion. Petitioner will not be entitled to get extension of time to deposit the costs of Rs.4 lacs on any ground. In case of any controversy regarding the amount or person, disputed amount will remain in the custody C.R. No. 5102 of 2007 [8] of the Court concerned. In case of failure to deposit the amount of Rs.4 lacs by the date fixed, this petition will be deemed to have been dismissed and the surviving plaintiff- respondents and the Legal Representatives of the deceased plaintiff- respondents will be entitled to seek the possession of the land in dispute. With the above condition, this petition is allowed. Copy of the order be sent to the trial Court. July 13, 2009 (M.M.S.BEDI) sanjay JUDGE