C.R. No. 234 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 234 of 2010 Date of Decision:15.12.2011 Chander Singh and another ....Petitioners. Versus Ramkaran and another ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Pankaj Midha, Advocate for the petitioners. Mr. S.K. Verma, Advocate for respondent No.1. AJAY KUMAR MITTAL, J. 1. The defendants-petitioners are aggrieved by order dated 24.3.2008 passed by the trial court which was upheld by the appellate court vide order dated 4.9.2009 declining to accept the application filed by them under Order 9 Rule 13 of the Code of Civil Procedure (in short “the Code”) for setting aside the exparte order dated 2.11.2000 and exparte decree dated 20.11.2003. 2. Put shortly, the facts necessary for adjudication as narrated in the petition are that plaintiff-respondent No.1 filed a suit for declaration to the effect that he was owner in possession of the property in dispute. In the said suit, the defendants-petitioners were proceeded against exparte and exparte decree was passed against them. Thereafter, the defendants filed an application under Order 9 Rule 13 of C.R. No. 234 of 2010 -2- the Code for setting aside the exparte decree. The trial court vide order dated 24.3.2008 dismissed the said application filed by the defendants. Feeling aggrieved, the defendants filed an appeal against the order dated 24.3.2008. The appellate court vide order dated 4.9.2009 dismissed the appeal. Hence, the present revision petition. 3. I have heard learned counsel for the parties. 4. Learned counsel for the petitioners submitted that the defendants had entered into a compromise with the plaintiff-respondent No.1 on 24.2.1998 and it was on account of the said compromise that they had considered that the suit shall be decided in terms thereof. The exparte proceedings and decree followed as plaintiff or his counsel had not appeared. He further submitted that the delay in filing the application could not be a ground for rejecting the application. He placed reliance on the judgments of the Hon'ble Supreme Court in Bhagmal and others v. Kunwar Lal and others, 2010 (3) RCR (Civil) 941 and Bombay High Court in Lachhiram Chudiwala (HUF) v. Bank of Rajasthan Limited, 2007(5) RCR (Civil) 420. It was next contended that the findings recorded by the courts below were perverse and this Court is competent to exercise revisional jurisdiction under Article 227 of the Constitution of India. In support thereof, he had placed reliance upon the judgment of this Court in Mohinder Singh and another v. Mohinder Singh and others, 2008(4) RCR (Civil) 563. It was also urged that it was the negligence on the part of the counsel for which they could not be held responsible in view of the Apex Court judgment in G.P. Srivastava v. R.K. Raizada and others, (2000) 3 SCC 54. 5. Controverting the aforesaid submissions, learned counsel C.R. No. 234 of 2010 -3- for the plaintiff-respondent No.1 submitted that the defendants- petitioners had put in appearance in the trial court and filed the written statement and it was thereafter on 2.11.2000 that they were proceeded against exparte. It was further submitted that thereafter counsel for the defendants-petitioners also appeared on 10.10.2002 and had sought time to file an application for setting aside the exparte proceedings for which the case was adjourned to 14.11.2002. After that no one had appeared on the next date or thereafter and as such exparte decree was passed on 20.11.2003. Even the application was filed on 20.4.2004 after the expiry of more than four months. It was gross negligence on the part of the defendants-petitioners who did not participate in the litigation and abusing the process of the Court, had filed an application for setting aside the exparte judgment and decree. He also submitted that though there were talks of compromise but no formal compromise had been entered into between the parties and it was necessary for the defendants-petitioners to have proved the same by producing cogent evidence rather than dropping the proceedings in between. 6. After giving my thoughtful consideration to the respective submissions of the learned counsel for the parties, I do not find any merit in the revision petition. 7. The trial court framed the following issues on the application filed by the defendants-petitioners for setting aside exparte proceedings and decree and the reply filed by the plaintiff-respondent No.1:- “1. Whether the applicant had sufficient cause for C.R. No. 234 of 2010 -4- not making the application under Order 9 Rule 13 of the CPC within the prescribed period?OPP 2. Whether the applicant was prevented by any sufficient cause from appearing when the suit was called on 2.11.2000? OPP 3. Whether the application is not maintainable in the present form? OPR 4. Whether the application is barred by limitation?OPR 5. Relief.” 8. The trial court while adjudicating issues No.1 and 2 had recorded as under:- “17. After having heard both the sides and perusing the record carefully, I fully agree with the contentions raised on behalf of the respondent. The applicants have failed to make out any ground for condonation of delay. The applicants were proceeded against exparte on 02.11.2000 while the present application for setting aside the exparte judgment and decree has been filed on 02.04.04. The exparte judgment and decree has been passed on 20.11.03. Let alone explain each day of delay, the applicants have not been able to come up with any plausible ground for not appearing on 02.11.2000 and thereafter, on 14.11.02 nor any prayer has been made in the C.R. No. 234 of 2010 -5- present case for setting aside the order dated 14.11.02 which was a specific date, on which date, the applicants had been proceeded against exparte again without moving an application. The silence of the applicants for such a long period between 02.11.2000 and 14.11.2002 is deafening and shows that the applicants had lost their interest in the litigation and did not find it necessary to enquire about their case from their counsel. In the cross- examination of RW1, it has even come on record that on 24.02.98 there was some compromise that the suit will be withdrawn on 24.02.98 but as is evident from the record, the suit continued and it was the duly of the applicants to keep a tab of the proceedings. 18. In view of my above discussion, the applicants have miserably failed to explain the delay, to justify condoning the same nor there is any plausible ground for setting aside the exparte judgment and decree. Accordingly, both these issues are decided in favour of the respondent and against the applicants.” 9. On appeal the aforesaid findings were affirmed by the lower appellate court and the appeal filed by the petitioners was dismissed upholding order dated 24.3.2008 passed by the trial court. 10. It was held that the exparte proceedings were initiated on C.R. No. 234 of 2010 -6- 2.11.2000 and on 10.10.2002, counsel for the defendants-petitioners made a prayer for a date for filing an application for setting aside the exparte proceedings which he failed to do. Thereafter, the judgment and decree was passed on 20.11.2003 and even the application was filed four months thereafter, i.e. on 2.4.2004. In such circumstances, it could not be said that the application filed by the defendants-petitioners was bonafide rather it amounts to abuse of process of Court. 11. No explanation much less plausible explanation had been tendered as to when on 10.10.2002, a prayer was made for filing an application for setting aside exparte proceedings why no application was filed till the passing of the exparte decree on 20.11.2003. No justification had been advanced for not filing the application for setting aside exparte decree immediately thereafter whereas the same had been filed on 2.4.2004 after the expiry of more than four months. 12. Nothing could be shown that the findings recorded by the courts below were perverse or erroneous in any manner. 13. Now adverting to the judgments relied upon by the learned counsel for the petitioners, the legal principles enunciated therein are well recognized. However, in the facts and circumstances of the present case as noticed hereinabove, the same have no applicability. 14. In view of the above, there is no merit in this revision petition and the same is hereby dismissed. December 15, 2011 (AJAY KUMAR MITTAL) gbs JUDGE