C.R.No.2149 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.2149 of 2011 Date of decision: 30.3.2011 Surjit Singh ….Petitioner Vs. Labh Singh and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. S.P.S Tinna, Advocate for the petitioner. Jaswant Singh, J Petitioner Surjit Singh, who claims himself to be the legal representative of original defendant No.1-Bohar Singh has preferred the instant petition under Article 227 of the Constitution for setting aside the impugned order dated 4.3.2011 (P.2) passed by learned Civil Judge (Jr. Division), Abohar whereby his prayer for setting aside the order dated 3.6.2003 initiating ex parte proceedings against his father has been declined ; with a further prayer to allow him to file written statement, cross examine the witness besides allowing to lead evidence. Brief facts are that the plaintiff-respondent Nos.1 to 5 filed a civil suit No.31-1 of 28.3.2003 for declaration to the effect that they are owner in possession of land measuring 5 kanal 5 marla described in the head note of the plaint in equal share with consequential relief of mandatory injunction directing the defendants to refund the amount of compensation of land measuring 1 kanal 8/1-2 marla received from the Government of C.R.No.2149 of 2011 #2# Punjab in the acquisition proceedings. During the pendency of the civil suit, original defendant No.1- Bohar Singh was proceeded ex parte vide order dated 3.6.2003 by the learned trial Court and later on said Bohar Singh died on 31.10.2010. After his death, an application under Order 22 Rule 4 CPC (P.1) was filed praying that he may be impleaded as legal representative of Bohar Singh so that he could contest the suit. Besides this, another application for setting aside the order dated 3.6.2003 was also moved. Upon notice, both the applications were opposed by the plaintiff-respondent Nos.1 to 5. After hearing both the sides, learned trial Court has allowed the application under Order 22 Rule 4 CPC of the petitioner for bringing on record the legal representatives of deceased Bohar Singh with a rider that he can join the proceedings from the date when the application was filed whereas the prayer for setting aside the ex parte proceedings initiated vide order dated 3.6.2003 has been declined. Learned counsel for the petitioner has argued that the father of the petitioner died on 31.10.2010 and then only he came to know about the pendency of the civil suit and immediately thereafter said applications were filed. It is further argued that the plaintiff-respondent Nos.1 to 5 fraudulently got the ex parte proceedings initiated against his father vide order dated 3.6.2003 and in case the same are not set aside, the petitioner shall suffer an irreparable loss and injury, which would not be compensated in any way, as such he has prayed for setting aside the impugned order and to grant him the opportunity of filing written statement, leading evidence and cross examine the PWs in the interest of justice. After hearing learned counsel for the petitioner and perusing the paper book, this court does not find any merit in the petition and the C.R.No.2149 of 2011 #3# same deserves dismissal. Admittedly, the suit was filed on 28.3.2003 and original defendant No.1/Bohar Singh-father of the petitioner was proceeded ex parte as far back as on 3.6.2003. Plaintiff has already closed his evidence on 2.11.2006 and the evidence of defendant Nos.2 & 3/proforma respondent Nos.6 & 7 was closed on 4.8.2010 and the case was fixed for rebuttal evidence, if any, when the aforesaid applications were filed. The case is eight years old and is covered the Action Plan-2010. On earlier occasion, defendant Nos.2 & 3 had also filed an application for amendment of the written statement but the same was dismissed by the learned trial Court vide order dated 9.11.2009 and ultimately revision petition filed against the same was also dismissed by this Court vide order dated 26.7.2010. It is necessary to mention here that another application for additional evidence was also filed by defendant Nos.2 & 3/proforma respondent Nos.6 & 7, which was also dismissed by the learned trial Court vide order dated 16.2.2011. It is thereafter that the aforesaid applications have been filed by the petitioner and learned trial Court has allowed the application of the petitioner under Order 22 Rule 4 CPC to join the proceedings as legal representatives deceased Bohar Singh from the date of filing of the application i.e 1.3.2011 and has rightly declined the another application for setting aside the ex parte proceedings initiated against deceased Bohar Singh on 3.6.2003. There is no explanation for not challenging the ex parte proceedings during the life time of said Bohar Singh and the petitioner being the legal representative will step into the shoes of his father and cannot be permitted to challenge the ex parte proceedings initiated vide order dated 3.6.2003 after a period of almost C.R.No.2149 of 2011 #4# eight years as the same will amount to de novo trial and there will be no end to the litigation. There is nothing on record to substantiate that any fraud was committed while passing the order dated 3.6.2003 at the instance of plaintiff-respondent Nos.1 to 5 rather the defendants are trying to delay the matter on one pretext or the other. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned order dated 4.3.2011 (P.2) passed by learned Civil Judge (Jr. Division), Abohar warranting interference under Article 227 of the Constitution. Dismissed. March 30, 2011 ( JASWANT SINGH ) manoj JUDGE