CR No.1923 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR No.1923 of 1993 Date of Decision: 14.10.2009 Mohinder Kaur and others .....Petitioners Vs. Sadhu Singh and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Sarwan Singh, Senior Advocate with Mr.N.S. Rapri, Advocate for the petitioners. Mr. Virender Singh Rana, Advocate for the respondents. .... RAJIVE BHALLA, J This order shall dispose of CR Nos. 1923 and 1925 of 1998, as they relate to the same parties and involve adjudication of the same issues. The petitioners and proforma respondent no.2, challenge the order dated 29.1.1993, passed by the then Sub-Judge, Ist Class, Balachaur, dismissing their application for restoration of Misc. Application No.10 of 1986. The petitioners filed an application for recalling the order dated 22.8.1988, whereby the application for setting aside of the ex-parte judgement and decree dated 18.7.1986 was dismissed. The petitioners pleaded the following facts :- Sadhu Singh filed a suit for declaration that he had become owner in possession of the mortgaged property for failure of Mohinder Singh to redeem the property. Sadhu Singh was aware that Mohinder Singh resides in the United Kingdom, but furnished his local CR No.1923 of 1993 2 address. A false service report was obtained and Mohinder Singh was proceeded against ex-parte. An ex-parte judgement and decree came to be passed in favour of Sadhu Singh on 18.7.1986. On coming to know of the ex-parte judgement and decree, Mohinder Singh filed application No.10/1986, through his attorney Darshan Singh, for setting aside the ex- parte judgement and decree. Mohinder Singh pleaded that as he is a resident of the United Kingdom and not visited India for the last many years, he has been proceeded against ex-parte by furnishing a false address. Mohinder Singh passed away on 21.7.1988. Darshan Singh, his attorney, colluded with Sadhu Singh and did not pursue the application which was dismissed as withdrawn on 22.8.1988. Mohinder Kaur, the widow of Mohinder Singh (Petitioner no.1) herself a resident of the United Kingdom, visited her village on 5.2.1989. A large number of people collected to pay condolences for the death of her husband. On 6.2.1989, she was informed about the suit, the passing of an ex-parte decree and the dismissal of the application for setting aside the ex-parte decree. She, therefore, promptly filed an application for setting aside the order dated 22.8.1988. In response to the averments in the application, Sadhu Singh, respondent no.1, prayed that the application be dismissed as barred by time. He denied that Mohinder Singh died on 21.7.1988 and alleged that the applicants were aware of the passing of the ex-parte decree as well as the order dated 22.8.1988. On the basis of the pleadings, the learned Sub-Judge, Ist Class, Balachaur framed the following issues :- “1. Whether there are sufficient grounds for restoration of the application for setting aside the ex- CR No.1923 of 1993 3 parte decree ? OPA. 2. Whether the application is within time ? OPA 3. Whether the applicants are the legal representatives of the deceased Mohinder Singh ? OPA 4. Relief.” The trial court dismissed the application as barred by time by holding that the petitioners have failed to establish sufficient cause for condonation of delay. The petitioners filed an appeal before the Additional District. Judge, Hoshiarpur, which was dismissed as withdrawn on 8.6.1993, as the appeal was not maintainable. Counsel for the petitioners submits that the trial court ignored the fact that there is no evidence on record to infer that the petitioners, who are residents of the United Kingdom, were aware of the suit, the ex-parte decree, the application for setting aside the ex-parte decree or its dismissal. The trial court has proceeded to decide the application as if it were deciding an application filed by Mohinder Singh, himself. It is submitted that the mere fact that petitioner no.1, who is a resident of United Kingdom, did not step into the witness box and deposed through her attorney, is irrelevant, as the petitioners were not parties to the suit, the ex-parte decree and the application for setting aside the ex-parte judgement and decree. It is further argued that after the death of Mohinder Singh, the attorney executed in favour of Darshan Singh came to an end and therefore, Darshan Singh had no right in law to withdraw the application, on 22.8.1988. It is prayed that as the petitioners who are non-resident Indians have been duped by respondent no.1 and others, the revision petition be allowed and the order CR No.1923 of 1993 4 dated 22.8.1988 be set aside. Counsel for the respondents, however, submits that the courts below have not committed any error. The application for setting aside the ex-parte decree was dismissed as withdrawn on 22.8.1988, whereas the application to recall this order was filed on 7.3.1989. In the absence of any cogent explanation for this delay and the failure of any of the petitioners to step into the witness box to establish the date of knowledge, the trial court rightly held that the application is barred by time. It is further submitted that the onus to establish that the attorney was aware of the fact of Mohinder Singh's death lay upon the petitioners. The failure of the petitioners to adduce any evidence that Darshan Singh was informed of the death of Mohinder Singh, the power of attorney executed by Mohinder Singh in favour of Darshan Singh was legal and valid on 22.8.1988. I have heard learned counsel for the parties and perused the impugned order. The petitioners are admittedly residents of the United Kingdom. As referred to in the narrative of facts, the trial court passed an ex-parte judgement and decree against Mohinder Singh, who was admittedly a resident of the United Kingdom. A perusal of the record discloses that he was arrayed, as a defendant by intentionally furnishing the address of village Jainpur. Mohinder Singh filed an application for setting aside the ex-parte judgement and decree, through his attorney Darshan Singh pleading that a wrong address was intentionally furnished, as he had not visited India for the last many years and, therefore, there was no question of effecting service at Village Jainpur. Unfortunately, Mohinder Singh passed away on 21.7.1988. Darshan Singh, his attorney did not pursue the CR No.1923 of 1993 5 application leading to the dismissal of the application as withdrawn on 22.8.1988. Mohinder Kaur, the widow of Mohinder Singh visited their native village Jainpur on 5.2.1989. A large number of people visited her to pay their condolences. On 6.2.1989, she came to know about the ex-parte decree and the dismissal of the application for setting aside the ex-parte decree. She promptly filed an application on 7.3.1989 for recalling the order dated 22.8.1988. The trial court dismissed the application as barred by time, for failure of the petitioners to show sufficient cause and for failure of Mohinder Kaur to step into the witness box. It is true that Mohinder Kaur has not stepped into the witness box but has deposed through her attorney. As a general rule of prudence, facts that are within the personal knowledge of the principal cannot be deposed to by the attorney. However, the trial court lost sight of a fundamental fact, that the petitioners were not parties to the original suit, did not file the original application for setting aside the ex-parte judgement and decree and, therefore, the onus to establish that they were aware of the proceedings lay upon the respondents. The question whether Darshan Singh, the attorney of Mohinder Singh was aware of the death of Mohinder Singh or whether he had the authority to withdraw the application are not germane to this application. The respondents have not denied that the petitioners are residents of the United Kingdom. There is no material on record to suggest that the petitioners were aware of the suit, the ex-parte decree, the application for setting aside the ex-parte judgement and decree or its dismissal. In the absence of any evidence, to establish that the petitioners were aware of the proceedings before 6.3.1989, the trial court failed in its duty to recall the order dated 22.8.1988, as it was within CR No.1923 of 1993 6 limitation from the date of knowledge. It would be necessary to emphasise that courts are respected for their ability to adjudicate disputes on merits. Dismissal of suits and proceedings on technicalities tend to perpetuate a feeling of injustice. In my considered opinion, the instant case, reflects the predicament of a Non- Resident Indian family faced with an ex-parte decree depriving them of their property, by furnishing a false address. Taking into consideration the totality of the circumstances, the interest of justice and fair play, the revision petition is allowed. The order dated 22.8.1988 is set aside, the matter is remitted to the trial court to decide the application filed under Order 9 Rule 13 of the C.P.C., in accordance with law, within a period of six months from the date of receipt of a certified copy of this order. Any expression of opinion as to the merits shall be disregarded. Parties are directed to appear before the successor court of Sub Judge, Ist Class, Balachaur on 7.12.2009. 14.10.2009 ( RAJIVE BHALLA ) GS JUDGE