Civil Revision No. 4377 of 2008 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 4377 of 2008 Date of decision. 24.09.2009 Narinder Singh son of Kultar Singh r/o village Kalian Manjan, Tehsil Mukerian, District Hoshiarpur. ....... Petitioner Versus 1. Parsin Kumar, 2. S.N. Jyoti, both sons of Laxmi Parkash @ Lachman Kumar r/o 1247, Near Ghoghe Circle, Krishan Nagar, Bhawnagar (Gujrat) now respondent no.1 is r/o Parkash Lodge, Summer Hill, Shimla and respondent no.2 is r/o Mast Bhawan, Kot Kishan Chand, Jalandhar City. ...... Respondents 3. Jaswant Singh s/o Mohan Singh r/o Manj Kala, Tehsil Mukerian, District Hoshiarpur. 4. Lakhbir Singh s/o Karam Singh r/o Bnendera Raiya (Mradpur) Tehsil Mukerian, District Hoshiarpur. 5. Harnam Singh s/o Wadhwa Singh r/o Mukerain, Tehsil Mukerian, District Hoshiarpur, 6. Himmat Singh s/o Baisakha Singh r/o village Khanpur, Tehsil Mukerian, District Hoshiarpur. 7. Nasib Singh son of Balwant Singh r/o Kalian Manjan, Tehsil Mukerian, District Hoshiarpur. 8. Ram Singh s/o Durga Singh r/o village Cheema Pote, Tehsil Mukerian, District Hoshiarpur. 9. Jit Kaur w/o Durga Singh, r/o village Cheema Civil Revision No. 4377 of 2008 --2-- Pote, Tehsil Mukerian, District Hoshiapur. 10. The Mukerian Cooperative Land Mortgage Bank Ltd. Mukerian, Tehsil Mukerian, District Hoshiarpur through its Manager, 11. Punjab Finance Corporation Chandigarh through its Manager. 12. Mahang Sohan Singh Chela Kartar Singh, r/o village Terkiana, Tehsil Dasuya, District Hoshiarpur. And 13. Swaran Singh s/o Kartar Singh r/o village Terkiana, Tehsil Dasuya, District Hoshiarpur. ... Performa respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Satbir Rathore, Advocate for the revision-petitioner. Mr. Sarju Puri, Advocate for respondent nos. 1 and 2. **** Sham Sunder, J. This revision-petition is directed against the order dated 01.03.2008, (Annexure P-6), rendered by the Court of Additional District Judge, Hoshiarpur, vide which, it dismissed the application, moved by Narinder Singh, defendant/ (now revision-petitioner), under order 41 Rule 21 and Order 9 Rule 13 CPC for setting aside the ex-parte judgment and decree dated 05.03.2004, passed by the Court of the then Additional District Judge, Hoshiarpur. Civil Revision No. 4377 of 2008 --3-- 2. The facts, in brief, are that, a suit for declaration was filed by Parsin Kumar and S.N. Jyoti, plaintiffs/respondents, against the defendant/revision-petitioner, and others that they were the owners of the land, in dispute, and the sale deeds, executed in their favour, in respect thereof were forged and fabricated. In the alternative relief of possession was also sought. The suit was dismissed by the trial Court on 01.10.2002. An appeal was preferred. The Court of Additional District Judge, Hoshiarpur, accepted the same, vide its judgment and decree dated 05.03.2004. Thereafter, a Regular Second Appeal was filed, which was dismissed on 06.04.2004 by this Court. Throughout the defendant/revision-petitioner was ex-parte. 3. An application for setting aside the ex-parte decree dated 05.03.2004, passed by the Court of Additional District Judge, Hoshiarpur, was filed on 03.09.2005 by the defendant/revision petitioner, on the ground that no notice of the suit or appeal was ever served upon him, and he had no knowledge or notice, whatsoever, of the pendency thereof; that the defendant/ revision-petitioner, was serving in the Army, at the relevant time, when the suit was fixed for service, before the trial Court; that in the absence of personal service, service Civil Revision No. 4377 of 2008 --4-- through publication in the newspaper 'the Tribune' was no service in the eyes of law; that the defendant/revision-petitioner did not come to know of the pendency of the suit;that the defendant/revision-petitioner purchased 10 marlas of land, out of the suit land from Jaswant Singh, respondent, vide registered sale deed, for a sale consideration of Rs.20,000/- and was in possession thereof; that after discharge from the Army, the defendant/revision-petitioner was employed in Indo Tibet Border Police and was posted at Chandigarh; and that on 14.08.2005, he came to his village and contacted his Counsel, but on inquiry,he told him that the ex-parte decree had been passed against him.It was stated that since the defendant/revision-petitioner was not at all served in the suit, as also in the appeal, there was sufficient cause, for setting aside the ex-parte decree. 4. In reply, plaintiffs/ respondent nos. 1 and 2, pleaded that the application was not maintainable; that the applicant was estopped from filing the petition, by his own act and conduct; that the application was fictitious; that the applicant/revision-petitioner was duly served; and that he was having knowledge of the pendency of the suit, as also the appeal, but did not appear intentionally and deliberately. It was Civil Revision No. 4377 of 2008 --5-- admitted that the suit was decreed and the appeal, by the first Appellate Court against the same was was accepted, whereas the Regular Second Appeal was dismissed. 5. From the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether there are sufficient grounds for setting aside ex-parte judgment and decree dated 5.3.2004 passed by Sh. R.P. Nagrath, the then Additional District Judge, Hoshiarpur, in civil appeal No. 389 of 30.10.2002/17.11.2003 ?OPA 2. Whether the applicant is estopped by his act and conduct from filing the present application ?OPR 3. Relief.” 6. The Court of Additional District Judge, Hoshiarpur, dismissed the application, under Order 9 Rule 13 CPC, vide order dated 01.03.2008. 7. Feeling aggrieved, the instant revision petition has been filed by the revision-petitioner. 8. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. Civil Revision No. 4377 of 2008 --6-- 9. The Counsel for the revision-petitioner, submitted that, the revision petitioner was posted in the Army and was not residing in the village. He further submitted that, as such, he was not served personally. He further submitted that the service through publication in the Tribune was no service in the eyes of law. He further submitted that even the revision- petitioner was not in the knowledge of the pendency of the suit, as also the appeal. He further submitted that, no doubt, the first appeal was accepted and the Regular Second Appeal was dismissed, yet there was sufficient cause for setting aside the decree of the first Appellate Court, but the Court below, wrongly dismissed the application under Order 9 Rule 13 CPC. He further submitted that the order impugned, rendered by the Court below, being illegal, was liable to be set aside. 10. The Counsel for the respondents submitted that there was no sufficient cause for setting aside the decree. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision-petition, deserves to be dismissed, for the reasons to be recorded hereinafter. No doubt, the defendant/revision-petitioner was posted in Army, when the Civil Revision No. 4377 of 2008 --7-- suit was filed against him. He, however, admitted that his family was residing in the village. He also admitted, during the course of his statement, that Jaswant Singh, his vendor, from whom, he purchased the land, in dispute, was residing in his adjoining house, in the village. He also admitted that he used to come to his village during the pendency of the suit, as also the appeal. He also admitted that he used to meet Jaswant Singh during that period. It may be stated here that in the suit, filed by the plaintiffs, not only the defendant/revision-petitioner was proceeded against ex-parte, but the other defendants, similarly situated, opted not to put in appearance, in the Court, despite service, and contest the same. No doubt, the suit was dismissed, yet the Appellate Court, accepted the appeal, and decreed the suit holding that the sale deed dated 23.01.1987 was not executed by Parsin Kumar, and S.N. Jyoti, plaintiffs, who were the owners of the suit land in favour of Jaswant Singh and the same was a forged and fabricated document. A criminal case was also registered, against Jaswant Singh, and the attesting witnesses of the sale deed. Since the defendant/revision- petitioner purchased the plot, from Jaswant Singh, who was residing in his adjoining house, in the village and he used to meet him, as and when he came to the village during leave, it Civil Revision No. 4377 of 2008 --8-- could not be imagined that he never inquired of him, regarding the litigation or the latter never told to him with regard to the fate of the litigation. As stated above, his family was even residing, in the village, and it could not be imagined that his family members could not come to know that a suit had been filed by the plaintiff, on the grounds, that the sale deed was the result of impersonation which was dismissed and an appeal against the same had been accepted. The defendant/revision- petitioner throughout continued waiting for the result of the litigation, and when, ultimately, the Regular Second Appeal was dismissed in limine, he resorted to the device of protracting the litigation and defeating the rights of the respondents. There was, thus, no sufficient cause for allowing the application, under Order 9 Rule 13 CPC. The Court below, was right in holding so. The order dated 01.03.2008 is neither illegal nor suffers from any material irregularity nor perversity and, therefore, the same does not warrant any interference, of this Court,in its revisional jurisdiction under Article 227 of the Constitution of India. The same is liable to be upheld. The submission of the Counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected. Civil Revision No. 4377 of 2008 --9-- 12. For the reasons recorded above, the revision- petition, being devoid of merit, must fail, and the same is dismissed. (Sham Sunder) Judge September 24, 2009 dinesh