Civil Revision No. 3418 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3418 of 2006 (O&M) Date of decision: 29.07.2009 Hazur Singh ....Petitioner Versus Nirmal Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. S.N. Gaur, Advocate, for the petitioner. Mr. H.O. Attri, Advocate, for respondents No. 2 to 10. ***** VINOD K. SHARMA, J (ORAL) CM No. 12377-CII of 2006 Allowed. The applicant-petitioner is exempted from filing the certified copies of Annexures P-3 to P-4. CR No. 3418 of 2006 This revision petition is directed against the order dated 25.11.2005 passed by the learned Courts below, dismissing an application moved by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure. The suit filed by the plaintiff/respondent was dismissed having abated on 1.9.1994. The appeal before this Court also failed. The respondent filed special leave petition before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court vide order dated 23.8.1996, Civil Revision No. 3418 of 2006 (O&M) -2- condoned the delay. The case was remanded back. After the case was remanded back by the Hob'ble Supreme Court, notice was issued to the parties. Presence of the petitioner along with his counsel was marked on 26.11.1996, and the case was thereafter adjourned to 8.1.1997. On the said date neither the petitioner nor his counsel appeared. Ex parte evidence was recorded on 8.1.1997, and the case was adjourned to 10.1.1997 for remaining evidence. On 10.1.1997 ex parte decree was passed in favour of the plaintiff/respondent. The petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside ex parte decree on 21.1.1997, by pleading therein, that no notice was received by the applicant or his counsel after the decision of the Hon'ble Supreme Court. It was also pleaded, that the Court had no territorial jurisdiction, as the land in dispute was situated at Bir Babran, Hisar, Tehsil and District Hisar, therefore, the Siwani Court could not adjudicate the matter. Reply to the application was filed, wherein averments made in the application were denied. It was also pleaded, that the applicant was estopped from filing the present application, as he was present on 26.11.1996 and signed the proceedings as a token of his presence. Mr. Ramesh Arora, Advocate, for the applicant was also said to be present on the said date in Court. Other defendant was already proceeded ex parte. On the pleadings of the parties, the learned Court was pleased to frame the following issues: - “(1) Whether the ex-parte decree dated 10.1.1997 is liable to be set-aside on the grounds as mentioned? OPP. (2) Whether the application is not maintainable in the Civil Revision No. 3418 of 2006 (O&M) -3- present form? OPD. (3) Relief.” In support of the application, the applicant appeared as his own witness and placed on record documents Ex. A-1 to Ex. A-6. No evidence was led by the respondents. The learned trial Court held that in view of the fact that the presence of the petitioner was marked, it could not be said that the petitioner had no knowledge of the proceedings, and dismissed the application. In appeal, the order has been affirmed. The learned counsel for the petitioner contends, that the application for setting aside ex parte order was filed within limitation. It is also the contention, that there was no reason, to disbelieve the petitioner as he contested the case right upto the Hon'ble Supreme Court. There was, therefore, hardly any reason for him not to appear in the Court. Learned counsel for the plaintiff/respondent, however, supports the order of the learned Courts below primarily on the ground, that once it was proved that the petitioner had the knowledge, having signed the proceedings on 26.11.1996, there is no reason to upset the order passed by learned Courts below. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. The application for setting aside ex parte decree was immediately filed on 21.1.1997. It is not understood as to why the procedure of getting the signatures of the petitioner was followed on 26.11.1996. Furthermore, on the next date of hearing, when Civil Revision No. 3418 of 2006 (O&M) -4- the counsel for the petitioner did not appear the Court could have issued notice to the party, but no such action was taken. The petitioner was not to gain anything but would have been permitted to contest the claim on merits, if the ex parte order was set aside. Bona fides of the petitioner cannot be doubted, as he contested the case upto the Hon'ble Supreme Court, and there was hardly any reason for him not to appear in Court thereafter, in case he knew about the proceedings. The evidence led in support of application also went unrebutted, as no evidence was led by respondents. Be that as it may, the learned Courts below could have set aside the ex parte decree, by compensating the plaintiff/respondent with costs. In view of what has been stated, this revision is allowed, impugned orders are set aside, and the application filed by the petitioner for setting aside ex parte order, is allowed. Parties through their counsel are directed to appear before the learned trial court on 31.8.2009. However, the petitioner shall be liable to pay costs of Rs.5,000/- (Rupees five thousand only), as compensation, for the inconvenience caused to the respondent. Revision allowed. (Vinod K. Sharma) Judge July 29, 2009 rs