Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 879 (PNJ)

Pritam Singh v. Lachhman Singh

2003-07-03

VINEY MITTAL

body2003
Judgment Viney Mittal, J. 1. Defendants No. 5 and 7 are in appeal. A suit for declaration and consequential relief for permanent injunction was filed by the plaintiff-respondent Lachhman Singh and others with regard to land measuring 134 kanals 18 marls. The plaintiff claimed that he is the owner in possession of the land in dispute and that defendants No. 1 and 2, namely Dharam Singh and Piara Singh in connivance with other defendants had obtained a judgment and decree dated September 19, 1992 in civil suit No. 613 of 1992 titled as Dharam Singh and Anr. v. Nasib Singh and others from the Court of Sub Judge, I Class, Kurukshetra. It was averred that the said judgment and decree dated September 19, 1992 arc illegal, null and void inoperative and not binding upon the rights of the plaintiff and were a result of fraud and misrepresentation and, therefore, were liable to be set aside. In the plaint, it was averred by the plaintiff that the defendants, at the time of the earlier suit, had told him that the land was to be partitioned in accordance with the shares. The plaintiff had accordingly, agreed to get the land partitioned. Accordingly, he agreed to suffer a decree for partition between the parties. However, he had never agreed to get his land transferred in the names of the defendants. The plaintiff claimed that he had come to know about the aforesaid fraud played upon him by the defendants from Halqa Patwari when he came to know about the sanction of mutation in favour of the defendants. Accordingly, he filed a suit with the prayer as aforesaid. 2. Upon notice of the aforesaid suit, defendants No. 1, 5 to 7, 9 to 13 only appeared and filed separate written statements. 3. In the written statement filed on behalf of the defendants No. 1 and 10 to 13 it was contended that the plaintiff had no locus stand (o file and maintain the suit as he was neither the owner nor in possession of the suit land. It was further contended that the judgment and decree dated September 19, 1992 had been suffered by plaintiff Lachhman Singh legally and validly and was binding upon him and there was no ground to set aside the same. It was further contended that the judgment and decree dated September 19, 1992 had been suffered by plaintiff Lachhman Singh legally and validly and was binding upon him and there was no ground to set aside the same. It was further stated that particulars of the fraud as alleged by the plaintiff had not been detailed out in the plaint. The defendants also claimed that the possession had been delivered to defendants amicably and after the decree and delivery of possession, defendants No. 1 and 2 were owners in possession of the suit land. 4. Defendants No. 5 and 9 filed a separate written statement. They have also objected that the plaintiff was not in possession of the suit land since he had delivered the possession of the suit land to defendant No. 5 on rent. They also supported the decree dated September 19, 1992 claiming that the same was suffered voluntarily by plaintiff-Lachhman Singh. They also maintained that the earlier suit was not for partition and the same was for the exchange of the land and the parties to the said decree had voluntarily made the statements. 5. On the basis of the respective pleadings of the parties, the learned trial court framed the issues and thereafter, posted the case for evidence of the plaintiff. However, at that stage, the defendants stopped appearing in the court. Accordingly they were ordered to be proceeded against exparte vide order dated July 19, 2000 passed by the learned trial court. Thereafter, the plaintiff adduced his exparte evidence. He appeared himself as PW1 and supported all the averments made by him in the plaint. The learned trial Court on the basis of the evidence led by the plaintiff found that the claim of fraud practice upon the plaintiff, as pleaded by him in the plaint, duly stood proved and therefore, it was held that decree dated September 19, 1992 passed by the Sub Judge I Class, Kurukshetra was based upon fraud and mis-representation. Accordingly, the aforesaid decree was set aside. The suit of the plaintiff was decreed. 6. Defendants No. 5 to 7 filed an appeal challenging the judgment and decree of the learned trial Court. The said appeal was heard by the learned Additional District Judge, Kurukshetra. 7. It may be relevant to notice here that the said appeal had been filed by the said defendants after the expiry of limitation. 6. Defendants No. 5 to 7 filed an appeal challenging the judgment and decree of the learned trial Court. The said appeal was heard by the learned Additional District Judge, Kurukshetra. 7. It may be relevant to notice here that the said appeal had been filed by the said defendants after the expiry of limitation. An application for condonation of delay was also filed. It was claimed by the defendants that in fact their counsel in the trial court had failed to notify them the result of the case and, therefore, they could not file the appeal within limitation. Accordingly the said appeal had become barred by 66 days. 8. The learned first appellate court on the appreciation of the averments made in the aforesaid application found that there was no ground to condone the delay. It was also noticed by the learned first appellant Court that after the filing of the written statement, the defendants had chosen not to appear before the learned trial Court. It was only thereafter that on July 19, 2000, they were ordered to be proceeded exparte. The defendants completely slept over the matter. They chose neither to get the aforesaid order dated July 19, 2000 set aside nor put in any appearance or led any evidence before the learned trial Court. Accordingly, the learned first appellate court held that since there was no sufficient grounds to condone the delay, therefore, the said application for condonation of delay was dismissed. 9. However, the learned first appellate court also dealt with the merits of the controversy. The learned first appellate court found that the judgment of the learned trial court was based upon the evidence on the record. The evidence on the record fully justified the conclusion drawn by the learned trial court and, therefore, no fault could be found with the same. The learned first appellate court also held that the judgment and decree dated September 19, 1992 were shown to be obtained by fraud as per the evidence on the record and the statement of the plaintiff. In fact there was no other evidence available on the record to come to any different conclusion. Accordingly, the learned first appellate Court dismissed the appeal filed by defendants No. 5 to 7. 10. Now the aforesaid defendants No. 5 to 7 has filed the present regular second appeal. 11. I have heard Sh. In fact there was no other evidence available on the record to come to any different conclusion. Accordingly, the learned first appellate Court dismissed the appeal filed by defendants No. 5 to 7. 10. Now the aforesaid defendants No. 5 to 7 has filed the present regular second appeal. 11. I have heard Sh. S.P. Singh, the learned counsel appearing for the appellant and Sh. Arun Jain, the learned counsel appearing for the eaveator-respondent No. 1 and with their assistance have also gone through the record of the case. 12. Sh. S.P. Singh, the lenrned counsel appearing for the appellants has submitted that in fact the judgments of the two courts below were outrightly liable to be set aside inasmuch as the evidence on the record was not sufficient to maintain the findings recorded by the learned courts below. Sh. S.P. Singh has maintained that in fact the plaintiff had not been able to prove the factum of fraud nor any such details of the fraud have been given by him in the plaint to justify the setting aside of the decree dated September 19, 1992. 13. I have given my thoughtful consideration to the contentions raised by the learned counsel for the appellant. However, I find myself unable to agree with the same. The evidence on the record comprised of the exparte evidence of the plaintiff. The defendants for the reasons best know to them, chose not to put in any further appearance after they filed the written statement. Vide order dated July 19, 2000, they were ordered to be proceeded against exparte. They neither approached the learned trial Court for setting aside the aforesaid order nor challenged the same by way of filing any appeal or revision. Since the evidence of the plaintiff was unrebutted and unquestioned, therefore, the learned trial court was fully justified in decreeing the suit filed by the plaintiff and holding that the decree dated September 19, 1992 was obtained by the defendants by practing fraud. There is also no force in the submission of the learned counsel for the appellants that the details of fraud have not been furnished by the plaintiff. There is also no force in the submission of the learned counsel for the appellants that the details of fraud have not been furnished by the plaintiff. In fact the averments made in the plaint fully show that the plaintiff has stated that he was conveyed by the present defendants (the plaintiffs in the earlier suit) that the share of the parties was to be partitioned and for that purpose the proceedings were initiated and his statement was required. It has been specifically stated in the plaint, pleadings as well as while appearing as his own witness that he had never agreed to suffer the decree dated September 19, 1992 and the same had been got suffered by him by practising fraud upon him. 14. Faced with this difficulty, the learned counsel for the appellants submitted that in fact the present plaint filed by the plaintiff was not duly verified and, therefore, could not have been entertained by the learned trial Court. 15. I have also examined this plea raised by the learned counsel for the appellant. 16. In fact I have also perused the copy of the written statement filed by the present defendant-appellants before the learned trial Court. No objection with regard to any wrong verification of the plaint as is being made out now, has been taken by the defendant-appellants in the written statement. No such objection was raised by them even before the learned first appellant court as well. The plea of defective verification is being raised by the appellants now only in the present regular second appeal. No new plea can be permitted to be raised at this stage. Even otherwise it had not been shown as to how the said verification was defective and as to how any prejudice, what-so-ever, has been caused to the defendant-respondents if at all. 17. Before parting with this judgment, it may also be relevant to notice another contention raised by the learned counsel for the appellants. The learned counsel has maintained that the counsel who had represented the appellant before the learned trial court was negligent and, therefore, they should not suffer for the negligence of their counsel. It may be relevant to notice here that the appellants, till this day, have not initiated any proceedings against the counsel for any such negligence as alleged by them. It may be relevant to notice here that the appellants, till this day, have not initiated any proceedings against the counsel for any such negligence as alleged by them. The mere suggestion that the counsel has been negligent cannot be accepted. In fact after the filing of the written statement by the defendants, they themselves chose to stop putting in appearance before the learned trial court. So much so that when the defendants were not available and participating in the proceedings, then on July 19, 2000, the learned trial court chose to proceed against them exparte. If the learned trial court passed an order for proceedings exparte against the defendants, then it could not be suggested that it was the counsel who was negligent. On the face of it, it was the defendants themselves who stopped taking any interest in the litigation. It is only after having lost in the two courts below, that the defendants have now thought of putting the blame on the shoulders of the counsel. No other point has been urged before me. In view of the above observations, I do not find that the findings recorded by the courts below suffer from any infirmity or are contrary to the record in any manner. No question of law much less any substantial question of law, arise in the present appeal. No merit. Dismissed.