IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP(M) No. 253 of 2010 and Civil Revision No. 152 of 2009. Judgement reserved on: 28.4.2010. Date of decision: 14.6.2010. Sanjay Kumar ….. Petitioner. Vs. Ved Parkash and anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Verma, Advocate. For the Respondents : Mr. B.B.Vaid, Advocate. Kuldip Singh, Judge. The order dated 8.7.2008 passed by learned Civil Judge (Junior Division), Court No. 4, Shimla in case No. 47/1 of 2003 was assailed by the petitioner by filing petition under Article 227 of the Constitution, which was registered as CMPMO No. 576 of 2008. The learned counsel for the respondents had raised objection of maintainability of petition under Article 227of the Constitution. CMP No. 745 of 2009 was filed by the petitioner for converting CMPMO No. 576 of 2008 into civil revision. This application was allowed by the court on 16.12. 2009 and the petition under Article 227 of the Constitution of India was directed to be converted as revision petition. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. The petitioner filed CMP(M) No. 253 of 2010 under Section 5 of the Limitation Act for condonation of delay in filing the revision petition on the ground that he was initially advised to file petition under Article 227 of the Constitution. The petitioner was not negligent in filing the petition under Art. 227 of the Constitution instead of revision against the impugned order. It has been submitted that application for condonation of delay in filing the revision has been filed by way of abundened caution, CMPMO No. 576 of 2008 has already been converted to revision petition vide order dated 16.12.2009 of the court. The prayer has been made for condonation of delay in filing the revision. 3. The application has been opposed. It has been submitted that limitation for filing the revision was already over when petition under Art. 227 of the Constitution was filed. The petitioner has not shown sufficient cause for condoning the delay. The petitioner had adopted wrong remedy, which was not available to him. The petitioner is delaying the decision on one pretext or the other. 4. I have gone through the application, which is supported by an affidavit. I have also gone through the reply which is also supported by an affidavit. The stand of the petitioner is that he had filed the petition under Art. 227 of the Constitution as he was advised to file petition under Article 227 of the Constitution against the impugned order. In other words, it is the case of the petitioner that he filed the petition under Art. 227 of the Constitution against the impugned order as per advise. The learned counsel for the respondents has submitted that when the petition under Art. 227 of …3… the Constitution was filed, the limitation for filing the revision against the impugned order was already over, therefore, petitioner has not made out any case for condonation of delay. This contention of the learned counsel for the respondents is only noticed to be rejected. The period of limitation for filing the revision petition is relevant if the petitioner would have initially decided to file revision against the impugned order. The petitioner was initially advised to file petition under Article 227 of Constitution. In fact, he filed petition under Article 227 of the Constitution. 5. This court on 16.12.2009 has already directed the conversion of the petition under Article 227 of the Constitution into revision. I am satisfied that petitioner has sufficiently explained under what circumstanced he had filed the petition under Art. 227 of the Constitution. The explanation given by the petitioner appears to be bonafide. Hence, for the reasons stated in the application, the delay in filing the revision is condoned. CMP(M) No. 253 of 2010 is accordingly allowed. 6. In revision petition, the facts in brief are that respondents have filed a suit against the petitioner for specific performance of agreement dated 24.4.2003 regarding property more specifically described in the plaint. The petitioner has contested the suit. In view of limited controversy involved in the revision petition, it is not necessary to elaborate the stand of the respondents and petitioner in the suit. 7. In the suit, the petitioner was proceeded exparte on 22.8.2005. The petitioner had filed an application, under Order 9 …4… Rule 7 CPC for setting-aside order dated 22.8.2005, which was dismissed by the learned Sub Judge on 8.7.2008. The revision has been filed against the order dated 8.7.2008 on the grounds that order dated 8.7.2008 is wrong, illegal and without jurisdiction. The conclusion drawn by the learned trial court does not emerge from the material on record. There are sufficient grounds for setting-aside the order dated 22.8.2005. The non-appearance of the petitioner took place under unavoidable circumstances. There was no intentional and deliberate lapse on his part. The petitioner was not negligent for not putting appearance on 22.8.2005. The learned Sub Judge has taken technical view, ultimately, a prayer has been made for setting aside the impugned order. The learned counsel for the respondents has supported the impugned order. 8. I have heard learned counsel for the parties and have also gone through the record. On 15.7.2005, the learned counsel for the petitioner herein in the trial court pleaded no instructions and, therefore, the petitioner was ordered to be served for 22.8.2005. On 22.8.2005 none appeared on behalf of the petitioner. In the order dated 22.8.2005, the learned trial court has observed that defendant has refused to take notice, therefore, he was proceeded exparte. The suit was fixed on 26.9.2005 for exparte evidence. On 26.9.2005 presence of the learned counsel for the respondents/ plaintiffs has been marked. The presence of D.K.Sharma, learned counsel for the defendant has also been marked by way of correction, which was ordered on 28.10.2005. In fact on 26.9.2005, statements of PW 5 …5… Darshan Kumar and PW 6 Naresh Kumar were recorded and they were also cross-examined. 9. On 19.10.2005, petitioner had filed application under Order 9 Rule 7 read with Section 151 CPC for setting aside exparte order dated 22.8.2005. In the application, he has submitted that on 15.7.2005 he could not appear in the court on account of threats to his life extended by the respondents. The petitioner did not receive any intimation from his counsel Y.P.Sood, Advocate withdrawing from the case on his behalf. The said counsel informed him through letter, which was delivered to him in first week of July 2005. He has submitted that in pursuance of order dated 15.7.2005 no notice was tendered to petitioner nor he refused to receive the same. In these circumstances, the petitioner was wrongly proceeded exparte on 22.8.2005. It has been alleged that petitioner remained unrepresented on 26.9.2005 in the court below, therefore, cross- examination of witnesses Darshan Kumar and Naresh Kumar on behalf of the petitioner does not arise. The petitioner has prayed for setting-aside exparte order dated 22.8.2005. This application was contested by the respondents by filing the reply. 10. The consequence of non-appearance of the defendant when the suit is called for hearing is provided in Order 9 Rule 6 CPC. The Rule 7 of Order 9 CPC provides that where the court has adjourned the hearing of the suit exparte, and defendant at or before such hearing, appears and assigns good cause for his previous non- appearance, he may, upon such terms as the Court directs as to …6… costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. 11. AW 1 Sanjay Kumar has stated that he had engaged Y.P.Sood, Advocate. He did not receive the summon for the date 22.8.2005. He had applied for the copies in the last week of July 2005, which were delivered in the last week of July. On receiving the copies, he came to know that the next date is fixed on 22.8.2005. He did not appear on 22.8.2005 as he could not engage an advocate. 12. RW 1 Manohar Lal has stated that he is Process-server in the court of Chief Judicial Magistrate-cum- Civil Judge (Senior Division). He also handles the summons of other courts. Ex. RW 1/A summon was received by him for effecting service on Sanjay Kumar. He identified Sanjay Kumar present in the court. He handed over Ex. RW 1/A to Sanjay Kumar, who refused to receive the summon on the ground that name of his father has been wrongly written in the summon. He made the report Ex. RW 1/B on the summon. 13. RW 2 Y.P.Sood, Advocate has stated that in suit Ved Parkash vs. Sanjay Kumar, he was counsel for the defendant. On 15th July 2005 he had pleaded no instructions. He had written registered letter to this effect to defendant. On 25.9.2005 defendant came to his chamber alongwith his friend Jagat Singh. He told that case was fixed on 26.9.2005. He requested him (witness) for defending the suit. He had shown his inability on account of his no instructions already pleaded by him. On the request of defendant, he contacted D.K.Sharma, Advocate on telephone for defending him, who agreed to defend him on his request (witness). …7… 14. RW 3 D.K.Sharma, Advocate has stated that on 25.9.2005 he received telephone of Y.P.Sood, Advocate who told him that he could not appear in the suit Ved Parkash vs. Sanjay Kumar as he had pleaded no instructions. He (witness) had talk with Sanjay Kumar through Y.P.Sood. Sanjay Kumar instructed him to appear on his behalf on 26.9.2005. He appeared in the suit under instructions of Sanjay Kumar. 15. The report Ex. RW 1/B on summon Ex. RW 1/A indicates that Sanjay Kumar has refused to receive the summon, but it has not been mentioned in the summon that Sanjay Kumar has refused to receive the summon as the name of his father has been wrongly mentioned in the summon. Manohar Lal has been cross- examined on the point that summon Ex. RW 1/A was not handed over to him but nothing has been suggested to the witness why the witness had made wrong report. 16. The petitioner has taken the plea that the report Ex. RW 1/B on summon Ex. RW 1/A was procured by the respondents in connivance with the Process- server. There is nothing on record to show why the Process-server should mix up with the respondents for giving false report. Assuming that summon Ex. RW 1/A was not handed over to the petitioner, even then there is enough material on record that petitioner was aware of the fact that suit was fixed on 22.8.2005 and his counsel Y.P.Sood had already pleaded no instructions in the suit. 17. AW 1 Sanjay Kumar has stated that on receiving the copies, he came to know that next date is fixed on 22.8.2005 but he …8… did not appear on 22.8.2005 as he could not engage an advocate. The statement of Y.P.Sood, Advocate establishes that petitioner was aware of the date and even on 25.9.2005 the petitioner requested Y.P.Sood, Advocate for putting in appearance on 26.9.2005 but the counsel had shown his inability as he had already pleaded no instructions on behalf of the petitioner in the court below. There is substance in the statement of RW 3 D.K.Sharma, Advocate that on the request of RW 2 Y.P.Sood, Advocate, he agreed to defend the petitioner on 26.9.2005 and he had even talk with petitioner and on his instructions he appeared on his behalf in the court below on 26.9.2005. The record shows that PW 5 Darshan Kumar and PW 6 Naresh Kumar were cross-examined on behalf of the petitioner on 26.9.2005 in the court below. 18. The learned counsel for the petitioner has submitted that since Y.P.Sood, Advocate had not withdrawn as counsel for the petitioner in the court below, in these circumstances, D.K.Sharma, Advocate could not appear on behalf of the petitioner and cross- examine the witnesses PW 5 Darshan Kumar and PW 6 Naresh Kumar. This submission of learned counsel for the petitioner is without merit. D.K.Sharma, Advocate has given his memo of appearance on behalf of the petitioner in the court below on 26.9.2005, which is at page 265 of the trial court file. He has stated that he appeared in the court below on behalf of the petitioner under instructions of the petitioner. In any case, the order dated 26.9.2005 when the statements of PW 5 Darshan Kumar and PW 6 Naresh Kumar were recorded in the court below has not been assailed in the …9… revision. The learned Sub Judge while rejecting the application under Order 9 Rule 7 CPC, in the operative part of impugned order has observed as follows:- “In view of my findings of issue No.1, application under Order 9 Rule 7 C.P.C. is dismissed. Moreover, there is no question of setting aside ex-parte order dated 22.8.2005, when on subsequent date i.e. 26.09.2005, Sh. D.K.Sharma, Advocate appeared for the defendant/ applicant and cross-examined the witnesses of plaintiff/ non- applicant. As defendant/ applicant had joined the proceedings on next date i.e. 26.09.2005. As such case is fixed for defendant evidence for 05.08.2008, on taking steps within 15 days.” 19. The aforesaid observation of the learned trial court indicates that the exparte order dated 22.8.2005 virtually had no bearing on the rights of petitioner in the court below. The record of the suit indicates that petitioner was proceeded exparte before 22.8.2005 also but that order was set-aside as it was not contested by the opposite side. The petitioner was given several opportunities to lead evidence after 8.7.2008, but he has not examined any witness. On the contrary, on 10.3.2009 none appeared on behalf of petitioner in the court below and he was proceeded exparte on that date. The petitioner is delaying the decision in the suit. The learned counsel for the petitioner has failed to point out how the order dated 22.8.2005 is without jurisdiction. On the contrary, the petitioner had refused to receive the summon Ex. RW 1/A and he was otherwise aware that the suit was fixed on 22.8.2005. Therefore, the learned …10… trial court has rightly proceeded exparte against the petitioner on 22.8.2005. 20. No other point was urged. 21. The result of above discussion, the revision fails and is accordingly dismissed. The parties through their counsel are directed to appear before the court below on 30.6.2010. The Registry is directed to send the record to the trial court immediately so as to reach that court well before the date fixed. No cost. June 14, 2010. ( Kuldip Singh ), (Hem) Judge.