IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 1168 of 2005
Date of Decision : August 25, 2009
Paramjit Kaur
....Petitioner
Versus
Amarjit Singh @ Jeet Singh and another
.....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. B.S. Bhasaur, Advocate
for the petitioner.
Mr. P.S. Dhaliwal, Advocate
for respondent No.1.
T.P.S. MANN, J.
Civil Suit No.110 dated 16.5.1998 was filed by Amarjit
Singh @ Jeet Singh, respondent No.1 herein, against Paramjit Kaur
and others. It was decreed ex parte on 20.5.1999. On 21.7.1999, an
application was filed by Paramjit Kaur, petitioner herein, and her
husband Surjit Singh, respondent No.2 herein, under Order IX Rule 13
of the Code of Civil Procedure for setting aside the ex parte decree
dated 20.5.1999 on the ground that they were never served in the suit
filed by Amarjit Singh nor they knew about the same. Reply to the
application was submitted by Amarjit Singh that the pendency of his
suit was well within the knowledge of the defendants. Moreover, the
application was time barred. Accordingly, he prayed for dismissal of
the application.
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On 20.8.1999, learned trial Court framed the following
issues:-
“1. Whether the application under Order IX Rule
13 C.P.C. is within time ? OPA.
2. Whether there are sufficient grounds to set
aside the ex parte judgment and decree
passed in Civil Suit No. 110 of 16.5.1998
decided on 20.5.1999 titled as ‘Amarjit Singh
Versus Paramjit and others’ ? OPA.
3. Relief.”
After hearing learned counsel for the parties and going
through the evidence, learned trial Court held that the pendency of the
civil suit filed by Amarjit Singh was in the knowledge of the defendants
on 5.6.1998 when Amarjit Singh filed reply to an application of Paramjit
Kaur under Order I Rule 10 of the Code in another suit bearing No.124
dated 19.5.1998 titled ‘Amarjit Singh Vs. Raj Singh and others’ wherein
he categorically disclosed that Civil Suit No.110 dated 16.5.1998 filed
by him was pending for 14.6.1998 and he had obtained a stay order
against the defendants. As the defendants knew about the pendency of
the suit, the application filed by them on 21.7.1999 for setting aside ex
parte decree dated 20.5.1999 was time barred. Accordingly, the
application under Order IX Rule 13 of the Code was dismissed.
Civil Revision No. 1168 of 2005 -3-
Aggrieved of the order passed by the learned trial Court,
both Paramjit Kaur-petitioner and her husband Surjit Singh-respondent
No.2 filed an appeal but the same was also dismissed by the lower
appellate Court on 16.11.2004. Still not satisfied, Paramjit Kaur is now
before this Court in a revision filed under Section 115 of the Code.
Learned counsel for the petitioner had submitted that
neither any summon nor any registered letter was served upon the
petitioner and her husband in Civil Suit No.110 dated 16.5.1998 filed by
Amarjit Singh. Inspite of the fact that Amarjit Singh knew that she and
her husband were residing at Kothey Ram Sar, near Drain Bridge, Baja
Khana Road, Barnala, he described them to be residents of Barnala in
the suit. It was done with the sole purpose of getting an ex parte decree
in his favour against the petitioner and her husband. The petitioner and
her husband learnt about the ex parte decree a day before they filed
the application under Order IX Rule 13 of the Code and then they
contacted their Pairokar asking him to obtain information regarding the
decree. After being informed about the passing of the decree on
20.5.1999, they applied for getting certified copy of the decree. Going
through the decree, the petitioner and her husband came to know that
Amarjit Singh had obtained the ex parte decree as a result, wherefore,
the earlier judgment and decree dated 23.10.1996 obtained by them
had been declared as null and void. Accordingly, it was prayed that the
revision be accepted, impugned judgments passed by the learned
Courts below be set aside and the application under Order IX Rule 13
of the Code be allowed.
Civil Revision No. 1168 of 2005 -4-
Learned counsel for contesting respondent No.1 had
argued that the petitioner and her husband Surjit Singh were aware of
the suit filed by him. Thrice, they refused to accept the registered
letters. They were served through publication in a daily newspaper on
31.10.1998 and when they did not appear on 3.11.1998, they were
proceeded against ex parte. Respondent No.1 had filed Civil Suit
No.124 dated 19.5.1998 against Raj Singh and others wherein Paramjit
Kaur-petitioner filed an application under Order I Rule 10 of the Code
so as to be impleaded as a party-defendant. In his reply dated 5.6.1998
to the said application, respondent No.1 had categorically mentioned
that he had filed the present suit, i.e. Civil Suit No.110 dated 6.5.1998
against the petitioner and her husband and wherein he had obtained a
stay order against them. As such, the petitioner and her husband were
well aware of the present suit and, therefore, it did not lie in their mouth
to now plead that they had no knowledge about the same. It was also
submitted that though the petitioner and her husband were claiming in
their application under Order IX Rule 13 of the Code that they were
residing at Kothey Ram Sar, near Drain Bridge, Baja Khana Road,
Barnala yet they were residents of Barnala and, therefore, described as
such in the present suit. Even, while filing their application under Order
IX Rule 13 of the Code, the petitioner had supported her averments by
filing an affidavit, wherein she mentioned herself to be resident of
Barnala. Again, in her application under Section 151 C.P.C. moved
before the learned trial Court for the stay of the operation of the ex
parte decree and also in the affidavit in support thereof, she described
herself to be resident of Barnala. As the petitioner and her husband
came to know on 5.6.1998 about the pendency of the suit when
Civil Revision No. 1168 of 2005 -5-
respondent No.1 had filed his reply to the application under Order I
Rule 10 of the Code, the application filed by them under Order IX Rule
13 of the Code on 21.7.1999 was time barred as the suit was decreed
ex parte on 20.5.1999. Therefore, learned lower Courts rightly declined
to grant any interference to the petitioner and her husband on their
application under Order IX Rule 13 of the Code.
The records of the case, which were requisitioned, have
been thoroughly examined.
While appearing as AW1, Smt. Paramjit Kaur-petitioner
described herself to be a resident of Barnala. She admitted that she
had filed an application under Order I Rule 10 of the Code through her
counsel but the same was dismissed. The said application dated
28.5.1998 has been brought on record by the plaintiff/contesting
respondent No.1 as Ex.R3 wherein Paramjit Kaur pleaded that she be
also impleaded as party-defendant in Civil Suit No.124 dated 19.5.1998
titled Amarjit Singh @ Jeet Singh v. Raj Singh and another. The
aforementioned application filed by the petitioner was replied by
respondent No.1 on 5.6.1998 wherein it was specifically mentioned by
him that he had also filed Civil Suit No.110 dated 16.5.1998 and
pending for 14.6.1998 and also obtained an order of stay against the
petitioner. The said reply is on the record as Annexure R2. The
application dated 28.5.1998 (Annexure R3) submitted by the petitioner
was dismissed by learned Civil Judge (Junior Division), Barnala on
15.6.1998 vide order Ex.R4. While ordering so, learned Judge
mentioned the factum of the pendency of the present suit, i.e. Civil Suit
Civil Revision No. 1168 of 2005 -6-
No.110 dated 16.5.1998. Relevant observations made regarding the
pendency of the present suit are reproduced as under :-
“In the revenue record, the applicant is not the
owner in possession. No khasra girdawari entered
to the name of applicant and no mutation has been
sanctioned to her name which has already been
challenged and the same is pending in the Court of
Shri Baljinder Singh, P.CS., Civil Judge (Junior
Division), Barnala, and he has also secured the
stay from the Court regarding the alienation, the
Photostat copy of the order dated 16.5.1998 has
been attached with this reply. The
respondent/plaintiff has prayed for dismissal of
application.
xxxx xxxx xxxx
xxxx xxxx
The alleged decree dated 23.10.1996 has already
been challenged in the Court of Shri Baljinder
Singh, P.C.S., Civil Judge (Junior Division),
Barnala. Due to this reason, the applicant Paramjit
Kaur is not necessary party in this case.”
From the above, it stands established that the petitioner
and her husband Surjit Singh had known on the basis of reply dated
5.6.1998 (Ex.R2) and order dated 15.6.1998 (Ex.R4) that
plaintiff/respondent No.1 had filed Civil Suit No.110 dated 16.5.1998.
Despite the same they did not take any steps to put in appearance
before the trial Court in the present suit.
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A perusal of ex parte judgment dated May 20, 1999
(Ex.R1) would reveal that the petitioner and her husband were served
in the suit on 31.10.1998 through publication in a daily newspaper.
Despite the same, they failed to put in appearance before the learned
trial Court and were resultantly, proceeded against ex parte.
Though, according to plaintiff/respondent No.1, the
petitioner and her husband were residents of Barnala yet they had
pleaded in their application under Order IX Rule 13 of the Code that
they were residing at Kothey Ram Sar, near Drain Bridge, Baja Khana
Road, Barnala. As mentioned above, the petitioner and her husband,
while filing their application did aver that they were residents of Kothey
Ram Sar and their said address was mentioned at the end of the
application also where they affixed their thumb impressions. However,
alongwith aforementioned application, the petitioner had sworn in an
affidavit wherein she mentioned herself to be resident of Barnala.
Similarly, in their application under Section 151 C.P.C. for staying the
operation of the ex parte decree dated 20.5.1999 and also the affidavit
sworn in support thereof they were described as residents of Barnala.
Anyhow, learned trial Court had agreed with the stand of the petitioner
and her husband that the complete and proper address of the petitioner
and her husband was not mentioned in the suit and they were simply
stated to be residents of Barnala, but once it is held that the petitioner
and her husband were aware of the pendency of the present suit, they
were required to file an application within a period of 30 days, but
instead they filed such an application only on 21.7.1999, which was
clearly time barred.
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In view of the above, no case is made out for interference
in the orders passed by the learned lower Courts while declining the
prayer of the petitioner and respondent No.2 for setting aside ex parte
decree. The revision is, accordingly, dismissed.
( T.P.S. MANN )
August 25, 2009 JUDGE
satish
Whether to be referred to the Reporters : YES / NO