C. R. No. 3954 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 3954 of 2009 Date of Decision : January 20, 2010 Krishna and others .... Petitioners Vs. Tara Chand .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sudhanshu Makkar, Advocate for the petitioners. * * * L. N. MITTAL, J. (Oral) : Petitioners herein are legal representatives of defendant Dharmu (since deceased). Respondent Tara Chand filed suit against Dharmu. Defendant Dharmu was proceeded ex-parte in the suit. However, the suit was dismissed by the trial court. Tara Chand preferred first appeal against the judgment and decree of the trial court. In the appeal also, defendant-respondent Dharmu was proceeded against ex-parte. Learned Additional District Judge, Bhiwani, vide judgment dated 09.12.1995 (Annexure P-2) allowed the appeal and decreed the suit of the plaintiff- respondent. Petitioners herein moved an application under Order 9 Rule 13 of the Code of Civil Procedure (in short – CPC) for setting aside ex-parte judgment and decree dated 09.12.1995 passed by the Lower Appellate Court C. R. No. 3954 of 2009 2 alleging that defendant Dharmu was not served in the suit. Ex-parte judgment dated 09.12.1995 of the Appellate Court came to the notice of the petitioners on 11.10.1999 only, when their counsel in some other suit Mr. S. L. Makkar, Advocate informed them about the same. Plaintiff- respondent had filed another suit against Chhabila, in which the present petitioners moved application for becoming party, but in rejoinder to the said application, Tara Chand did not disclose about the decree dated 09.12.1995. The aforesaid application moved by the petitioners was opposed by plaintiff-respondent by raising various preliminary objections. The application was alleged to be time barred. Averments made in the application were also controverted. Learned Additional District Judge, Bhiwani, vide impugned judgment dated 05.03.2008 (Annexure P-1), has dismissed the aforesaid application holding that the petitioners miserably failed to prove sufficient ground for setting aside judgment and decree dated 09.12.1995 and the application was also held to be time barred and not maintainable in the present form. Feeling aggrieved, the instant revision petition has been preferred under Article 227 of the Constitution of India. I have heard learned counsel for the petitioners and perused the case file. The petitioners simply examined one Bir Singh – attorney of petitioner no.1 as PW-1. However, the respondent examined the concerned Process Server, who had effected service of notice of appeal on Dharmu. The plaintiff-respondent also himself stepped into the witness box. No evidence whatsoever has been led by the petitioners to depict that Dharmu was not served with notice of appeal. On the other hand, respondent has led evidence to prove that notice of appeal was served on Dharmu. In view thereof, there is no ground, much less sufficient C. R. No. 3954 of 2009 3 ground for setting aside the ex-parte judgment and decree dated 09.12.1995. In addition thereto, defendant was also proceeded against ex-parte in the trial court. This circumstance would also go against the petitiones and would show that defendant never intended to contest the suit or the appeal. The application moved by the petitioners for setting aside the ex-parte judgment and decree dated 09.12.1995 is also hopelessly barred by limitation. The petitioners made a futile attempt to bring the application within limitation by falsely pleading that they acquired knowledge of the ex-parte judgment and decree dated 09.12.1995 for the first time on 11.10.1999, when informed by Mr. S. L. Makkar, Advocate – their counsel in some other suit. However, neither any petitioners has stepped into the witness-box to depose about this fact, nor Mr. S. L. Makkar has been examined as witness to depose about the same. On the other hand, in written statement filed in another suit, factum of ex-parte judgment and decree dated 09.12.1995 was disclosed and the said written statement was filed on 02.11.1998. Consequently, the petitioners acquired knowledge of judgment and decree dated 09.12.1995 on 02.11.1998 at least. Consequently, application filed by the petitioners almost a year thereafter, on 26.10.1999, is hopelessly barred by limitation. The petitioners have no respect for truth and falsely asserted that they acquired knowledge of the ex-parte judgment and decree dated 09.12.1995 on 11.10.1999 only. Learned counsel for the petitioners contended that Mr. Jagwant Singh, Advocate was their counsel in the other suit, when written statement dated 02.11.1998 was filed. However, Mr. Jagwant Singh has also not been examined as witness to depict that he had also not informed the petitioners about the ex-parte judgment and decree dated 09.12.1995. For the reasons recorded herein above, I find no infirmity or illegality in the impugned judgment of learned Additional District Judge, C. R. No. 3954 of 2009 4 Bhiwani so as to warrant interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is accordingly dismissed in limine being devoid of any merit. January 20, 2010 ( L. N. MITTAL ) monika JUDGE