Civil Revision No. 7706 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No. 7706 of 2009 (O&M) Date of Decision: 8.2.2010 Jaspal Singh ....Petitioner Versus Amarjit Singh ...Respondent CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. T.S. Chauhan, Advocate for the petitioner. RAJESH BINDAL, J **** The challenge in the present petition is to the order dated November 16, 2007 passed by the learned Court below whereby the appeal against the dismissal of application under Order 9 Rule 13 CPC for setting aside of ex-parte decree, was dismissed. It is a case in which in a suit for possession by way of specific performance filed by the respondent, the petitioner/defendant was directed to be proceeded against ex-parte on August 29, 2001. The petitioner/defendant filed an application for setting aside of ex-parte order on September 5, 2001 in which notice was issued for November 23, 2001. However, counsel for petitioner did not appear. In his absence ex-parte evidence was recorded and ultimately the suit filed by the respondent/plaintiff was decreed on December 20, 2001. The application for setting aside of ex-parte judgment and decree of the trial Court was filed by the petitioner on September 17, 2002 which was dismissed by the trial Court on January 31, 2007 and even in appeal against that order before the learned District Judge, the petitioner failed. Learned counsel for the petitioner submitted that the service of petitioner was not effected properly and he was directed to be proceeded against ex-parte. Immediately when he came to know about proceedings, an application for setting aside ex-parte order was filed. As petitioner was working as a driver on a combine harvester, he usually remain out of the village and could not follow up the case. On the subsequent date the counsel having not Civil Revision No. 7706 of 2009 (O&M) 2 appeared ex-parte evidence of respondent/plaintiff was recorded and subsequently decree was also passed. When the petitioner came to his village he came to know about the order passed and immediately filed application for setting aside of ex-parte decree. The petitioner as well as defendant are cousins. The agreement to sell, the enforcement of which was sought in the suit, was a fabricated document. It is a case in which the counsel engaged by the petitioner had failed to put in appearance before Court and take care of interest of the petitioner on account of which the petitioner should not be made to suffer. After hearing learned counsel for the petitioner, I do not find any merit in the submission made. As far as knowledge of the petitioner about the suit is concerned admittedly after the petitioner was proceeded against ex-parte on August 29, 2001, he moved an application for setting aside of ex-parte order dated September 5, 2001. At this stage, it cannot be denied that the petitioner came in knowledge of the proceedings pending against him. Thereafter, till such time ex-parte decree was passed against against the petitioner on December 20, 2001, the petitioner failed to take care of his case. His plea that he usually remain out of village on account of his being a driver on a combine harvester cannot be accepted, prima-facie for the reason that harvesting season is not there for full year in continuation as it is only at the time of harvesting of two crops. Still after the petitioner came to know about the suit filed against him, it was his duty to have inquired about the proceedings from his counsel in which the petitioner has totally failed. It is also a fact that during the pendency of application filed by the petitioner before the Court below for setting aside of ex- parte decree, the decree in question had been executed. Considering the aforesaid facts, I do not find any illegality in the order passed by the Courts below. Accordingly, the present petition is dismissed. (RAJESH BINDAL) 8.2.2010 JUDGE Reema