IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** C.R. No.4690 of 2009 (O&M) Date of Decision:12.11.2010 Punjab Urban Planning and Development Authority .....Petitioner Vs. Avtar Kaur .....Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Ashish Grover, Advocate for the petitioner. Mr. Munish Kapila, Advocate for Mr. P.S. Mattewal, Advocate for the respondent. **** RAKESH KUMAR GARG, J. As per averments made in this petition, plaintiff- respondent filed a suit for declaration and mandatory injunction in the Court of Sub- Judge Ist Class, Ludhiana. After filing written statement, the petitioner failed to appear and was proceeded against ex parte. Thereafter, the suit was decreed vide ex parte judgment and decree dated 29.11.1994. An application for setting aside the aforesaid ex parte decree dated 29.11.1994 was filed by the petitioner in which the following issues were framed:- 1. Whether there are sufficient grounds in favour of the applicant/ JD for setting aside exparte proceedings dt. 26.10.94 and exparte judgment and decree dt. 29.11.1994?OPJD 2. Whether the application is within limitation?OPP C.R. No.4690 of 2009 (O&M) -2- The aforesaid application was dismissed by the Civil Judge Junior Division, Ludhaina vide his order dated 26.3.2002. The petitioner moved an application for restoration of the aforesaid application which was also dismissed by Civil Judge Junior Division, Ludhiana vide order dated 28.7.2006. Thereafter, the petitioner filed an appeal before the District Judge, Ludhiana challenging the judgment and decree dated 29.11.1994 and also the orders dated 26.3.2002 and 28.7.2006 along with an application for condonation of delay in filing the said appeal. The District Judge, Ludhiana vide his order dated 12.9.2007 framed the following issues in the aforesaid application for condonation of delay in appeal:- i) Whether there are sufficient grounds to condone the delay in filing the present appeal?OPA ii) Relief. Vide impugned judgment dated 18.5.2009, the application of the petitioner for condoning the delay of almost 13 years and in challenging the aforesaid decree dated 29.11.1994 was rejected. Resultantly, the appeal being time-barred was also dismissed. By way of this revision petition, the petitioner has challenged the aforesaid order dated 18.5.2009 submitting that from the facts as narrated above, it is clearly established that the petitioner was taking its recourse to challenge the impugned judgment and decree dated 29.11.1994 by taking one or the other proceedings in a bonafide manner and, therefore, it is well established that there were sufficient grounds for condoning the delay. On the other hand, learned counsel appearing on behalf of the C.R. No.4690 of 2009 (O&M) -3- respondent has supported the impugned order and has brought to the notice of this Court that one composite appeal filed by the petitioner before the District Judge challenging the decree dated 29.11.1994, order dated 26.3.2002, dismissing the application for setting aside the aforesaid ex parte decree and order dated 28.7.2006, dismissing the application of the petitioner for restoring the application under Order 9 Rule 13, was not competent, and in fact the action of the respondent is malafide as it remained unsuccessful in getting the decree dated 29.11.1994 set aside under Order 9 Rule 13 and, thereafter, it has chosen to challenge the aforesaid ex parte decree by way of filing the appeal, which has been dismissed being time-barred by the District Judge, Ludhiana vide impugned order. I have heard the learned counsel for the parties and perused the impugned order and other documents placed on record. Vide impugned order, the lower appellate court has, on appreciation of evidence, recorded a finding that from the explanation submitted by the petitioner and the evidence on record, no sufficient reasons were made out to condone the delay of such a long period of 13 years. Not only this, it may be seen that the petitioner had already availed its remedy against the ex parte decree dated 29.11.1994 by filing an application under Order 9 Rule 13 which was dismissed and had already become final between the parties. Counsel for the petitioner was also unable to submit as to whether after availing the opportunity under Order 9 Rule 13 for setting aside the ex parte decree dated 29.11.1994, whether an appeal claiming that very relief by way of filing an appeal was competent. In this view of the matter, I find no merit in this petition, which C.R. No.4690 of 2009 (O&M) -4- is absolutely frivolous and has been filed only to cover up the inaction of the officials of the department. Dismissed. Before parting with this order, I deem it appropriate to direct the Secretary, Housing Urban Development Authority, Punjab to hold an inquiry to fix the responsibility of the persons/officers/officials, who are guilty of not defending the case properly and diligently. The petitioner is at liberty to recover the financial loss caused to it from the aforesaid guilty officials in accordance with law. November 12, 2010 ( RAKESH KUMAR GARG ) renu JUDGE