IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5492 of 2009 Date of decision:- 9.8.2010 State of Punjab through its Chief Secretary, Chandigarh and another ......petitioner vs. Balwant Singh & ors ......respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. S. S. Sahu, AAG, Punjab for the petitioner Mr. G.S. Gill, Advocate for respondents No. 1 to 4. HEMANT GUPTA, J (ORAL) Challenge in the present revision petition is to the order passed by the trial Court on 21.4.2009 whereby an application filed by the present petitioner- defendant to set aside the ex-parte proceedings initiated on 26.5.1999 was dismissed. Plaintiff-respondents filed a suit for declaration and mandatory injunction to the effect that the plaintiffs are owner and in possession of 157 kanal 15 marlas, inter alia, on the ground that they are in possession of the same since long. It appears from the record that suit qua defendant No. 1 was withdrawn whereas defendant No. 2 was proceeded ex-parte vide order dated 26.5.1999 due to the non appearance of the said defendant. The Government pleader filed an application for setting aside the ex- parte proceedings, inter alia, on the ground that the ex-parte proceedings were found to have been initiated on 26.5.1999 in the third week of February, 2009. Therefore, an application to set aside the ex-parte proceedings was filed on 27.2.2009. The learned trial Court dismissed the application on the ground that the suit was filed on 31.3.1999 and defendant No.2 was proceeded ex-parte on 26.5.1999. It was on 18.2.2009, Smt. Parkash Kaur from the office of Tehsildar, Bathida appeared in ex-parte evidence led by the plaintiff. Thereafter, on 27.2.2009, an application was filed for setting aside the ex-parte proceedings. Learned trial Court found that the application for setting aside the ex-parte proceedings has been filed on 27.2.2009, though the order proceeding the petitioner-defendant ex-parte, was passed on 26.5.1999 and as such there is no explanation for the delay. The plaintiffs are claiming declaration of title in respect of land measuring 157 kanals and 15 marlas. The State of Punjab who was impleaded as defendant No. 1 has been given up. In the absence of State of Punjab as a defendant, the suit itself is without impleading of proper parties and thus prima facie not maintainable. Learned counsel for respondent produced the interim order dated 26.5.1999 which reads as under: - “Case called again several times after lunch, but none has appeared on behalf of the defendant No. 2, nor he himself appeared. It is 11.30 A.M. Therefore it is ordered that the defendant No. 2 is proceeded against ex-parte. Summons of the defendant No. 1 not received back. Be issued for the date fixed i.e. 26.7.1999.” A perusal of the above order does not show that the defendant No. 2 was served in any manner. The manner of service of defendant No. 2 cannot be made out from the order of 26.5.1999. A perusal of the order passed by the learned trial Court shows that the witness from the office of defendant No. 2 was served for 18.2.2009. The application for setting aside the ex-parte proceedings was filed on 27.2.2009. Thus, such application cannot be said to be suffering from any patent delay as the defendant came to know about such proceedings when the witness was served. Keeping in view the fact that the proceedings are at the initial stage, the order passed by the learned trial Court declining the setting aside of ex-parte proceedings suffers from patent illegality and cannot be sustained in law. Consequently, the order passed by the trial Court is set aside and ex- parte proceedings against the petitioner-defendant are set aside. The defendant is permitted to contest the suit on merits. Allowed in the above terms. (HEMANT GUPTA) JUDGE 9.8.2010 preeti