Civil Revision No. 6780 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 6780 of 2010 Date of decision : October 14, 2010 Mauji Ram Sharma ....Petitioner versus Smt. Bhani Devi and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Amit Singla, Advocate, for the petitioner L.N. Mittal, J. (Oral) Plaintiff has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 21.7.2010, Annexure P/1 passed by learned Civil Judge (Junior Division), Hansi, raising two fold grievance in the instant revision petition. Plaintiff-petitioner has filed suit against the respondents for specific performance of the agreement to sell allegedly executed by Sewa Ram since deceased predecessor of the respondents/defendants. Respondent no. 1 is widow of Sewa Ram whereas respondents no. 2 and 3 are minor sons of Sewa Ram. Respondents no. 2 and 3 have been sued through their paternal uncle Hawa Singh as guardian. Vide impugned order the trial court has dismissed the suit qua defendants-respondents no. 2 and 3 Civil Revision No. 6780 of 2010 -2- under Order 9 Rule 2 of the Code of Civil Procedure as the plaintiff- petitioner failed to file copies of plaint and other relevant documents for summoning of defendants no. 2 and 3. Learned counsel for the petitioner pointed out that Hawa Singh through whom respondents no. 2 and 3 have been sued was served on 5.12.2009 for 16.12.2009 as depicted by summons Annexure P/4 along with report of Process Server thereon. However, it appears that on 17.2.2010 when the trial court vide order Annexure P/6 ordered summoning of defendants no. 2 and 3 through Hawa Singh, it was not pointed out by counsel for the plaintiff to the trial court that Hawa Singh had already been served for 16.12.2009. Be that as it may, since Hawa Singh through whom minor defendants no. 2 and 3 have been sued did not appear in spite of service, the plaintiff-petitioner has to seek appointment of guardian ad-litem or court guardian of minor defendants no. 2 and 3 by moving appropriate application in the trial court. In these circumstances, ends of justice would be met if impugned order of the trial court to the extent of dismissing the suit against defendants no. 2 and 3 under Order 9 Rule 2 CPC is set aside on payment of costs. Another grievance of the plaintiff-petitioner against impugned order is that on application moved by plaintiff-petitioner for temporary injunction restraining defendants from alienating suit property in any manner till disposal of the suit, the trial court has ordered that the defendants shall be entitled to alienate the suit property with prior consent of the court and only after submitting particulars of the prospective vendees. However, that part of the order of the trial court does not require any Civil Revision No. 6780 of 2010 -3- interference in exercise of jurisdiction under Article 227 of the Constitution of India because the defendants have been held entitled to alienate the suit property with prior consent of the trial court and that too only after submitting particulars of the prospective vendees. Whenever defendants seek consent or permission of the trial court for alienating the suit property, the plaintiff may make submission before the trial court to direct the defendants to make recital in the deed of alienation about the pendency of the suit so that the prospective alienee may not take the plea of being bonafide purchaser in ignorance of the pendency of the suit. In view of the aforesaid the instant revision petition is allowed partly. Impugned order Annexure P/1 is set aside to the extent of dismissing the suit against defendants no. 2 and 3 under Order 9 Rule 2 CPC subject to the condition that the plaintiff-petitioner shall deposit Rs 1000/- as costs with Sub Divisional Legal Services Authority, Hansi. On deposit of the said cost, the suit against defendants no. 2 and 3 shall stand revived and shall proceed against them, in accordance with law. The revision petition has been disposed of without issuing notice because defendants no.2 and 3 have not put in appearance in the trial court. ( L.N. Mittal ) October 14, 2010 Judge 'dalbir'