Civil Revision No.1634 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1634 of 2011(O&M) Date of Decision: March 9, 2011 Dariya Singh .....Petitioner v. Arjuddin and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Rajesh Garg, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.6592-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.1634 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 23.11.2010, passed by learned Civil Judge, Junior Division, at Nuh, vide which application filed by petitioner for seeking permission to file written statement has been dismissed by learned trial Court. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that respondent no.1-plaintiff filed a suit for possession by way of specific performance of contract against present petitioner and respondent no.2 on the plea that petitioner and respondent no.2 entered into an agreement to sell the land in dispute measuring 1 kanal 1 marla on 27.3.2006 and that they committed breach of terms and conditions of the agreement and did not get the sale deed executed. On receiving notice, petitioner and respondent no.2 appeared before learned trial Court and however, their defence was struck Civil Revision No.1634 of 2011(O&M) -2- off and lateron both of them were proceeded ex parte. After recording evidence of respondent no.1-plaintiff, suit filed by respondent no.1-plaintiff was decreed ex parte against present petitioner and respondent no.2. Respondent no.2 filed appeal against the said judgment and decree dated 29.4.2008, whereas no appeal was filed by present petitioner. In the appeal filed by respondent no.2, learned appellate Court set aside ex parte judgment and decree passed against her and the case was remanded for allowing her to file written statement. After the case was remanded by learned appellate Court in appeal filed by respondent no.2, an application was filed by present petitioner before learned trial Court for allowing him to file written statement, which was contested by respondent no.1-plaintiff and the application was dismissed by learned trial Court vide impugned order by observing as under:- “ In the present case initially the suit was filed by the plaintiff against two defendants Dariya and Smt.Rekha. The parties appeared and were granted opportunity for filing the written statement but they failed to do so within the mandatory period and vide order dated 16.1.2007, the Court struck of the defence of both the defendants. Subsequently the defendants also failed to appear and were proceeded ex parte on 30.10.2007 and ex parte judgment and decree was passed against them on 29.4.2008. It is after this that defendant no.2 went in appeal against the ex parte judgment and decree and the appellate court passed its order on 30.8.2008 whereby the case was remanded back with the observations that defendant no.2 was unheard before the lower court and the trial court shall make a fresh decision after affording opportunity for filing written statement to the appellant, i.e., defendant no.2. This order has specifically been passed in favour of defendant no.2 and not all the defendants. As a result of this the defence of defendant no.1 which was struck of by the court, stands and it was on that day and it cannot be said by the applicant/defendant no.1 that due to the setting aside of proceedings against defendant no.2 the Civil Revision No.1634 of 2011(O&M) -3- proceedings against him would also be automatically set aside. Thus, when the applicant has failed to appeal against the judgment and decree passed against him it has become final qua defendant no.1 and, therefore, no merit is found in the application and the same stands dismissed.” It has been contended by learned counsel for the petitioner that as case of respondent no.2 is on similar footing and as judgment and decree has been set aside qua respondent no.2 and as the case is to be tried afresh, he be also given opportunity to adduce evidence. However, when judgment and decree passed against petitioner has become final as he did not challenge the same by way of an appeal, learned trial Court could not have granted him an opportunity to file the written statement and contest the suit. In view of the aforementioned discussion, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 9.3.2011 (Ram Chand Gupta) meenu Judge Civil Revision No.1634 of 2011(O&M) -4-