C.R. No.1526 of 1989 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.1526 of 1989 (O&M) Date of Decision: 27.05.2009 Balkar Singh and another .......Petitioners Versus Harnam Singh and others ....Respondents Present: Mr. C.B. Goel, Advocate with Mr. Nitin Jain, Advocate for the petitioners. Mr. D.V. Sharma, Sr. Advocate with Mr. Sanjiv Gupta, Advocate and Ms. Shivani Sharma, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- K. KANNAN J.(ORAL) 1. The revision is against the order dismissing the appeal filed against the order of the trial Court, which in turn was an order dismissing the application to set aside the ex parte decree passed on 24.05.1985. The decree had been passed upholding the right of pre- emption under the Punjab Pre-emption Act. 2. The petition was resisted on the ground that the order was not passed ex parte but an order rendered on merits under Order 17 Rules 2 and 3 CPC for the deliberate failure of the defendant to appear in Court and that there being sufficient evidence already on record, the trial Court decided to deliver judgment on the merits as provided in the Code of Civil Procedure. C.R. No.1526 of 1989 (O&M) -2- 3. The petition had been filed in time but, however, among other contentions, the contention relating to the non-maintainability of the petition was taken up and held against the applicant by the trial Court by reference to a decision of this Court in Rattan Singh Vs. Pritam Singh and others 1987 HRR 647 holding that if a decree had been passed against the defendant when he had failed to prosecute the case and a decision had been rendered on merits, an application to set aside the decree under Order 9 Rule 13 CPC was not maintainable. The decision was upheld at the Appellate Court finding, inter alia that the application filed by the defendant was itself not maintainable. It also held that there was no sufficient reason for setting aside the ex parte decree as contended by the defendant. 4. In revision the learned counsel appearing for the petitioner points out that certain provisions of the Punjab Pre-emption Act itself was struck down for certain portion by the decision of the Hon'ble Supreme Court in Atam Parkash Vs. State of Haryana AIR 1986 SC 859. The said judgment however, in paragraph 14, protected the suits which had been decreed on the basis of the said Act and which had become final. It excepted only suits or appeals which were pending in that the Hon'ble Supreme Court held that they would be disposed of in terms of the declaration granted by the Hon'ble Supreme Court. If only the decree had not become final or if there was an appeal pending at that time, it should have been possible for the defendant to contend that the decree could not have been passed. The disposal of the trial Court by reference to Order 17 Rule 2 and 3 was final and it could have been assailed only under the appeal provisions of the Code of C.R. No.1526 of 1989 (O&M) -3- Civil Procedure and could not have been set aside in the manner sought for by the defendant. By a mere fortuitous circumstance of the decree having been passed with no steps by the defendant to prefer an appeal, the plaintiff was able to steal a march over the defendant and forestall consideration of the case on merits. Learned counsel for the respondent states that even otherwise, the finding on absence of sufficient cause to set aside the ex parte decree was undertaken by the trial Court as well as the Appellate Court and they had held the conduct of the defendant to be not bona fide. The learned counsel points out if such a consideration had been done, as ruled by the Hon'ble Supreme Court in Manick Chandra Nandy Vs. Debdas Nandy and others 1986 AIR (SC) 446 the High Court would not exercise its revisional jurisdiction to upset a finding of evidence given in proceedings under Order 9 Rule 13. 5. The defendant loses out on two counts. One, by merely a quirk of fate that the decree had become final without an appeal having been filed although the plaintiff obtained a relief on the basis of an enactment that was found to be subsequently ultra vires in so far as that portion which enable him to obtain a decree. The second ground was the finding of want of bona fides and adequate reasons for setting aside the decree had obtained finality on factual considerations and hence, there was no scope for reopening the matter in revision before this Court. There is another aspect also that is worthy of notice. It is reported that the decree had been put in execution and the defendant had lost possession of the property. The plaintiff also appears to have disposed of the property to some third parties. At this C.R. No.1526 of 1989 (O&M) -4- length of time, it will be, therefore, difficult to set the clock back and hence the defendant's plea for setting aside the ex parte decree cannot be made in view of the subsequent events. 6. The civil revision is, therefore, dismissed. However, under the circumstances, there shall be no order as to costs. (K. KANNAN) JUDGE May 27, 2009 Pankaj*