RSA No. 1945 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1945 of 2008 Date of decision:- 18.11.2011 Hardev Singh ...Appellant Versus Paramjit Kaur & others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Jaideep Verma, Advocate for the appellant. Mr. Vivek Singla, Advocate for respondent No. 1 Mr. Naresh Kaushal, Advocate for respondent No. 2 Mr. Samir Rathore, Advocate for Mr. Sumeet Goel, Advocate for respondent No. 3 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? RITU BAHRI J. This regular second appeal is against the judgment and decree dated 28.01.2008 passed by the Additional District Judge, Rupnagar and the judgment and decree dated 20.01.2006 passed by the learned Civil Judge (Jr. Divn.), Rupnagar. Brief facts of the case are that the plaintiff was the owner in possession to the suit property to the extent of his share. His case is RSA No. 1945 of 2008 -2- that defendant/respondent No. 1-Parmajit Kaur (for short 'respondent No. 1') in connivance with the witnesses forged a General Power of Attorney dated 22.11.1993 (herein after called 'GPA') in her favour. Respondent No. 1 is a close relation of the plaintiff. She sold the alleged property in favour of respondent No. 2. The appellant after coming to know about the aforesaid forged G.P.A and the sale deeds lodged F.I.R No. 77 dated 12.09.1996 at police Station Kurali against the respondents. Thereafter, the plaintiff filed suit No. 246 of 24.10.2000 seeking a relief of declaration to the effect that the G.P.A and the sale deeds executed by the defendants are illegal, null and void and not binding upon the rights of the plaintiff. On an earlier occasion, the plaintiff had also filed a similar suit which was dismissed in default on 23.09.1998. The application for restoration of the suit was also dismissed in default on 26.07.2000. On notice, the defendants contested the suit by filing written statement. In the written statement, it has been stated that the said suit was not maintainable as earlier the plaintiff filed civil suit No. 245 dated 28.03.1998, which was dismissed in default on 23.09.1998 by the Court of learned Civil Judge (Junior Division) Rupnagar. This suit was dismissed under Order IX Rule 8 of the Code of Civil Procedure (for brevity 'the Code'). The application for restoration was also dismissed on 26.07.2000. Defendant/respondent No.2-Kanta Devi (for short 'respondent No. 2) had also filed written statement and took a plea that the suit was not within limitation. She had made full RSA No. 1945 of 2008 -3- inquiry about the power of attorney and then purchased the property from respondent No. 1. Respondent No. 2 is a bonafide purchaser for consideration of the suit land. It was further pleaded that the sale deed dated 22.02.1994 is legal and valid document. Defendant/respondent No.3-Paramjit Singh (for short 'respondent No. 3') filed his written statement raising the preliminary objections that the suit is barred under Order 11 Rule 2 of the code. It was further pleaded that plaintiff executed power of attorney in favour of respondent No 1 and respondent No. 1 on the basis of said power of attorney executed sale deed dated 22.02.1994 in favour of respondent No. 2 for consideration. Subsequently, respondent No. 2 also sold the suit land to respondent No. 3, vide sale deed dated 28.04.1994 for consideration and mutation has already been sanctioned. Respondent Nos. 2 and 3 are bona fide purchasers for consideration and without notice from any quarter. The trial Court framed following issues vide orders dated 03.12.2001 and 03.12.2002:- “1. Whether the power of attorney dated 22.12.1993 in favour of the defendant No.1 is illegal and a result of fraud and misrepresentation as alleged? OPP 2. If issue No.1 is proved whether the sale deeds dated 22.2.1994 and 28.4.1994 in favour of the defendants No.2 and 3 are null and void? OPP 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the suit is barred by resjudicata? OPD 5. Whether the plaintiff has no cause of action to the present suit? OPP 6. Whether the suit is time barred?OPD 7. Whether the plaint is not properly verified/ If so its effect?OPD 8. Whether the defendant No.3 is entitled to special RSA No. 1945 of 2008 -4- costs as claimed?OPD 9. Whether the plaintiff is entitled to the declaration as prayed for?OPP 10. Whether the plaintiff is entitled to the injuction as prayed for?OPP 10A Whether the suit is properly valued for the purpose of court fee and jurisdiction?OPP 10B Whether this Court has got jurisdiction to try and entertain the present suit?OPP 11 Relief.” In order to substantiate his case, the plaintiff stepped into witness box as P.W.1 and pleaded the case. He examined P.W.2- Shamsher Bahadur Singh, UDC, Passport Office, Jalandhar. Copy of the Power of Attorney dated 22.11.1993 was marked as Mark 'A' by the plaintiff. Paramjit Kaur appeared as D.W.1, Kanta Devi as D.W.2, Thath Singh as D.W.3, Nirmal Singh as D.W.4, Chatan Singh as D.W.5, Paramjit Singh as D.W.6 and Gurmukh Singh as D.W7 who is a Registration Clerk, from the office of Sub Registrar Chandigarh and deposed that he had brought the summoned record. He stated that the power of attorney was registered at Sr. No. 5606 Book No. 4, volume 148, page 61 dated 22.11.1993 in the office of Sub Registrar Chandigarh . The copy of power of attorney was also proved as Ex. DW7/A. D.W.8-Jawahar Lal deposed that he is working as deed writer at Kharar. On 22.02.1994, he scribed a sale deed at at instance of Paramjit Singh. After scribing the same, it was read over to the parties and witnesses. The parties singed the same after admitting it correct in the presence of witnesses. This sale deed is registered at Sr. No. 138 and proved the sale deed at Exhibit DW-8/A. Nanak Singh, Advocate, RSA No. 1945 of 2008 -5- Kharar, appeared as D.W.9 and deposed regarding scribing of sale deed dated 28.04.1994 by him. Before deciding the issue Nos. 1 and 2, the trial Court examined the certified copy of order dated 19.01.1998 passed in C.M. No. 184 dated 28.10.1996 by the Court of Chanan Singh, PCS, learned Civil Judge (Senior Division) Rupnagar. This order revealed that plaintiff-Hardev Singh had filed civil suit No. 185 dated 07.04.1995 against Paramjit Kaur and others i.e the present defendants for declaration that the registered power of attorney dated 22.11.1993 and the sale deed dated 28.04.1994 are illegal, null, void. The said suit was pending for 15.01.1996 and none appeared on the date despite the case being called repeatedly. Accordingly, it was dismissed in default. The civiil misc. No. 184 dated 28.10.1996 was an application for restoration of the said suit dismissed on 15.01.1996, which again was dismissed vide order dated 19.01.1998 passed by the court of Chanan Singh, PCS, the then learned Civil Judge (Senior Division) Rupnagar. Copy of order dated 19.01.1998 is Ex. DY. The plaintiff thereafter filed suit No. 245 dated 28.03.1998 titled as Hardev Singh vs. Paramjit Kaur and others and again impugned the G.P.A dated 22.11.1993 and the sale deed dated 28.04.1994, which again was dismissed vide order dated 23.09.1998 passed by the Court of Harpreet Kaur-II, PCS, the then learned Civil Judge (Jr. Divn), Rupnagar. Certified copy of order dated 23.09.1998 is Ex. DX. The order dated 23.09.1998 reads as under:- “Present: None for the plaintiff. Counsel for the defendants No. 1 and 2 RSA No. 1945 of 2008 -6- Sh. K.K. Kaushal Adv. Filed vakalatnama on behalf of defendant No. 2. But the case is called several times during the day. But none has appeared on behalf of the plaintiff. It is already 3.30 P.M. As such, the suit of the plaintiff is dismissed in default. File be consigned to the record room.” A perusal of the above said order revealed that learned counsel for the defendants No. 1 and 2 was present and no one appeared on behalf of the plaintiff. The said suit was dismissed under the provisions of Order IX Rule 8 of the Code. The said suit was dismissed, an application for restoration of the suit was filed. The plaintiff kept silent for a period of two years and thereafter filed the present suit on 24.10.2000. The trial Court held that the suit of the plaintiff is not maintainable. On issue Nos. 1 and 2, the trial Court examined oral and documentary evidence. A finding has been given that plaintiff has not been able to adduce any cogent and convincing evidence that the plaintiff was away from India on 22.11.1993. Defendant No. 1 is the sister-in-law of the plaintiff. In his cross- examination, the plaintiff has admitted that during the material period, the police was after him and other brothers of the plaintiff in the year 1993. All the brothers had executed the Power of Attorney regarding their properties in favour of defendant No. 1 who is none else than the sister-in-law of the plaintff. Respond No. 1 had admitted the execution of the Power of Attorney in the written statement. She appeared and RSA No. 1945 of 2008 -7- had admitted that Power of Attorney. In view of the above factual position, the trial Court came to a conclusion that Power of Attorney was duly executed by the plaintiff in favour of respondent No. 1. The sale deed dated 22.02.1994 was executed by respondent No. 1 in favour of respondent No. 2 for a consideration of ` 61,000/- and the sale deed dated 28.04.1994 was executed by respondent No. 2 in favour of respondent No. 3 for a consideration of ` 86,000/-. The suit of the plaintiff was dismissed by the trial Court. On appeal, the lower appellate Court has affirmed the findings returned by the trial Court that the G.P.A DW7/A is a registered document. The G.P.A has been executed before Sub Registrar and as per Section 85 of the Indian Evidence Act, it is presumed to be executed properly. This Power of Attorney was tendered in to evidence by the Clerk of the Office of Sub-Registrar, who has registered the Power of Attorney. The plaintiff, in his cross- examination has admitted that during the material period, the police was after him. On an earlier occasion, respondent No. 1 not only sold the house to the appellant by acting as her duty appointed attorney but she also purchased some landed property in the name of the appellant. This fact support the view taken by the learned trial Court that the G.P.A was duly executed by the plaintiff himself. As per the passport (Ex.P1), the plea of the plaintiff that he was not in India with the G.P.A was executed, is not borne out as per the entries which does not indicated that during the material period, the plaintiff was out of India. RSA No. 1945 of 2008 -8- The earlier suit filed by the plaintiff has been dismissed in default under Order 9 Rule 8 of the Code, therefore, the fresh suit on the same cause of action is barred under Order 9 Rule 9 of the Code. Respondent Nos. 2 and 3 were held to be bona fide purchasers for a consideration and the sale deeds in their favour are liable to be upheld. Heard learned counsel for the parties. Learned counsel for the appellant has placed reliance upon the judgment of Hon'ble the Supreme Court in a case of 'Parwatabi vs. Sonabai and others, 1996(2) Apex Court General 356' to contend that possession of immovable property or any interest therein based on title, suit has to be filed within 12 years of possession of defendant becominig adverse to the plaintiff. He has further placed reliance upon 2004(3) PLR 100 to contend that even when the earlier suit has been dismissed in default, there is no bar under Order 9 rule 8 of the Code to institute a fresh suit. The earlier civil suit No. 245 dated 28.03.1998 filed by the plaintiff was dismissed in default on 23.09.1998 by the Court of learned Civil Judge (Junior Division) Rupnagar after due notice to respondent Nos. 1 and 2. This fact is borne out from the order passed by Harpreet Kaur-II, PCS, the then learned Civil Judge (Jr. Divn), Rupnagar already reproduced above. In view of this factual position, the above judgment (2004 (3) PLR 100) cited by learned counsel for the appellant is not RSA No. 1945 of 2008 -9- applicable to the facts of the present case. The bar envisaged under Order 9 Rule 8 of the code is not attracted. Order IX Rule 9 of the code provides as under:- “Where a suit is wholly or partly dismissed under,rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise, as it thinks fit, and shall appoint a day for proceeding with the suit. Provided that the plaintiff shall not be precluded form bringing another suit for redemption of a mortgage, although a former suit may have been dismissed for default. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. 3. The provisions of Section 5 of the Indian Limitation Act, 1908 shall apply to application under sub rule (1).” A plain reading of the order IX Rule 9 of the Code enables the plaintiff to file for restoration of the suit no. 245 dated 28.03.1998 and to get the dismissal set aside after showing sufficient cause for non- appearance on 23.09.1998. However, this has not been done. The plaintiff kept silent for two years and thereafter filed the present suit on 24.10.2000. As per the provisions of order IX Rule 9 sub Rule 1 of the Code, the plaintiff is precluded from bringing a fresh suit on the RSA No. 1945 of 2008 -10- same cause of action. A Co-ordinate Bench of this Court in 'Arun Kumar and others vs. Lal Chand and others, 2009(5) RCR 805' and 'Karam Singh (deceased) through his legal heirs vs. Jaswant Singh and others, 2008(2) RCR Civil 477' has taken the similar view. No substantial question of law arises for consideration by this Court. Accordingly, R.S.A is dismissed. 18.11. 2011 ( RITU BAHRI ) G.Arora JUDGE