R.S.A. No. 3707 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3707 of 2008 (O&M) Date of decision: 07.1.2009 Mangat Singh ....Appellant Versus Amandeep Singh and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. L.N. Verma, Advocate, for the appellant. Mr. Sanjiv Gupta, Advocate, for the respondents. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal has been filed against the judgments and decrees dated 18.5.2005 and 22.10.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/respondents seeking declaration that they are owner in possession of the property in dispute under family settlement has been decreed. Plaintiff/respondents are the minor sons of the appellant/defendant. They filed a suit for declaration through their mother as legal guardian. Injunction was also sought against the appellant/defendant from alienating the suit property. Notice was issued to the appellant/defendant. However, as he failed to appear, he was ordered to be proceeded ex parte. The appellant/defendant moved an application under Order 9 Rule 9 of the Code of Civil Procedure for setting aside the ex parte order passed against him on the plea that no service was effected on him and R.S.A. No. 3707 of 2008 (O&M) -2- prayed that the ex parte order be set aside and he be permitted to contest the suit. The application was opposed. However, the learned trial Court without deciding the application, proceeded with the suit and finally decreed the same on 18.5.2005. In view of the fact that the suit stood decided, the appellant/defendant chose to withdraw the application and filed an appeal before the learned lower appellate Court. The appellant raised a plea that he was wrongly proceeded ex parte and the application for setting aside ex parte order had to be withdrawn by him in view of the fact that the suit stood decreed without taking any decision on his application moved under Order 9 Rule 9 of the Code of Civil Procedure. The learned lower appellate Court rejected this plea by observing that there was no material on file to show that the said application was got dismissed by the appellant/defendant in order to avail the remedy of appeal. The learned counsel appearing on behalf of the appellant has raised the following substantial questions of law: - 1. Whether the appellant could be proceeded ex parte on the basis of uncorroborated report of refusal of appellant to accept the process of service? 2. Whether the suit could be decided and decreed during the pendency of application dated 19.5.2003 filed by the appellant for setting aside ex parte order dated 10.8.2002? 3. Whether it was incumbent upon the learned trial Court to decide the application dated 19.5.2003 before proceeding with the case? R.S.A. No. 3707 of 2008 (O&M) -3- Mr. L.N. Verma, learned counsel appearing on behalf of the appellant vehemently contends that the report of refusal as recorded was totally false and, in fact, no notice was issued to him. He further contends that the learned trial Court was bound to have decided the application for setting aside ex parte order before proceeding further with the case. The contention of the learned counsel for the appellant is that without deciding the application, the appellant has been denied to contest the case, which was patently not competent as the sons could not sue seeking declaration of ownership and permanent injunction as no family settlement was placed on record nor injunction could be sought against the father from alienating the ancestral coparcenary property. The learned counsel for the appellant also contends that the judgment and decree passed by the learned lower appellate Court suffers from an error apparent on the face of record as the learned Court has failed to notice that the suit was decreed on 18.5.2005 whereas the application moved under Order 9 Rule 9 CPC was withdrawn by the defendant/appellant on 30.6.2005 i.e. after passing of the decree. Learned counsel appearing on behalf of the plaintiff/respondent does not dispute the fact that the application for setting aside ex parte order was filed by the defendant/appellant on 19.5.2003 and without taking any decision on the said application, the suit was decreed by the learned trial court on 18.5.2005. It is also not disputed that the application was withdrawn by the appellant only on 30.6.2005. The contention raised by the learned counsel for the appellant/defendant, thus, deserves to be accepted and the substantial questions of law as raised deserve to be answered in favour of the defendant/appellant. The order passed by the learned lower appellate Court, thus, suffers from error apparent on the face of record in holding that there was R.S.A. No. 3707 of 2008 (O&M) -4- no material on record to show that the application was withdrawn to avail the remedy of appeal. Consequently, the judgment and decree passed by the learned lower appellate Court is set aside and the case is remanded back to the learned lower appellate Court for decision of the appeal on merit by taking a decision as to whether the learned trial Court was justified in proceeding with the case without deciding the application moved by the appellant for setting aside ex parte order. Parties through their counsel are directed to appear before the learned lower appellate Court on 21.1.2009. The Court shall proceed with the appeal in accordance with law. (Vinod K. Sharma) Judge January 7, 2009 R.S.