Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 93 (HP)

BABU RAM v. HIRA SINGH

2005-04-12

V.M.JAIN

body2005
JUDGMENT V.M. Jain, J.—This order shall dispose of two applications. 2. In the application under Order 41 Rule 21 read with Order 42 Rule 1 read with Order 9 Rule 13 and Section 151 CPC; bearing CMP No. 252 of 2005, it has been alleged that Regular Second Appeal No. 224 of 1991 was filed by Baru Ram defendant and that the applicant-plaintiffs had not received notice of the said appeal and they had no knowledge of the pendency of the said appeal till July, 2004 and it was only in July, 2004 that Shri Khattar Singh, Ex-Pradhan of Gram Panchayat, told them that the disputed land had been sold by Jagat Singh defendant No. 1 to one Lai Singh and he also told them that Jagat Singh told him (Khattar Singh) that he had won some case against them in the High Court. It was alleged that thereupon the applicant firstly obtained the copy of the Judgment and Decree dated 1.3.1991 from the Court of District Judge on 4.8.2004 and thereafter the applicant rushed to Shimla and got inquiry made through Counsel in the Registry of this Court and the Counsel engaged by them inspected the file of the Regular Second Appeal on 7.8.2004 and from inspection of the file it transpired that the applicants had been proceeded ex-parte, firstly at the time of the admission of the appeal on 19.9.1991, and then at the time of final hearing on 16.4.1993 and that it was also ordered that actual date intimation letters shall be sent to the applicants at the time of final hearing. It was alleged that the appeal had been finally heard ex parte on 21.10,1997 and was decided on 24.10.1997, vide which the Judgments and Decrees of the Courts below were set aside. It was alleged that neither notice of such appeal was sent to the applicants nor any such notice or intimation letter was served upon the applicants. It was alleged that the Counsel advised the applicants to bring further record etc. and the applicants were also required to make necessary arrangement for arranging necessary expenses for filing application and after obtaining record and making necessary arrangement, the applicants came to Shimla in the 2nd week of January, 2005 and it transpired that the High Court was closed on account of Winter Vacations. and the applicants were also required to make necessary arrangement for arranging necessary expenses for filing application and after obtaining record and making necessary arrangement, the applicants came to Shimla in the 2nd week of January, 2005 and it transpired that the High Court was closed on account of Winter Vacations. It was alleged that no notice of appeal was ever served upon the applicants either in the year 1991 or in the year 1997 and no notice of actual date hearing was served upon the applicants. It was also alleged that notices were shown to have been personally served on Hira Singh while Basant Singh was claimed to have been served through his real brother (Hira Singh) even though no such notice was received by Hira Singh for himself or on behalf of Basant Singh. It was alleged that the applicants were entitled to be heard on merits in the appeal. It was accordingly prayed that the application be allowed, the Judgment and Decree dated 24.10.1997 passed by this Court be set aside and the appeal be re-heard on merits after giving opportunity to the applicants. 3. As referred to above, even though from a reading of the application it appears that the application has been filed on behalf of both the plaintiff-respondents No. 1 and 2 being the applicants, but the title of the application shows only Hira Singh as the applicant and not plaintiff-respondent No. 2 Basant Ram, who has been shown as "non-applicant". In fact, the application is signed only by Hira Singh as the applicant and not by Basant Singh. 4. In the other application under Section 5 of the Limitation Act, bearing CMP (M) No. 216 of 2005. Similar allegations have been made and it has been alleged that the delay in filing the application be condoned as the delay has been satisfactorily explained. Even this application is signed by Hira Singh alone and not by Basant Ram. 5. I have heard the learned Counsel and have gone through the record, including the original record of RSA No. 224 of 1991, carefully. 6. A perusal of the appeal record would show that Baru Ram had filed RSA No. 224 of 1991 impleading Hira Singh and Basant Ram plaintiffs as respondents No. 1 and 2 and other defendants as proforma respondents. 6. A perusal of the appeal record would show that Baru Ram had filed RSA No. 224 of 1991 impleading Hira Singh and Basant Ram plaintiffs as respondents No. 1 and 2 and other defendants as proforma respondents. Vide order dated 5.6.1991, notice pending admission was ordered to be issued to the respondents and the records were also requisitioned. As per the office report, the respondents including respondents No. 1 and 2, namely, Hira Singh and Basant Ram had been duly served, inasmuch as Hira Singh was personally served while Basant Ram was served through his real brother. Thereupon, vide order dated 25.9.1991, after noticing that the respondents had been served but had not put in appearance, this Court admitted the appeal on substantial questions of law detailed at Serial Numbers 2 and 3 at page 6 of the paper book. It was further directed that since the respondents were served only with the show-cause notice and they had not put in appearance, the respondents be served afresh with the notice of appeal. The record further shows that after the appeal was admitted, notices of appeal were again issued to the respondents for 16.4.1993 for which date again, the respondents were duly served, inasmuch as respondent No. 1 Hira Singh was duly served while respondent No. 2 Basant Ram was served through his brother Hira Singh, respondent No. 1. The record further shows that on 16.4.1993, Dy. Registrar (Judl.) noticed that the respondents had been duly served and none had appeared on their behalf despite service and as such, service was now complete and since they were unrepresented, therefore, actual date intimation letters shall have to be sent to them at the time of final hearing. 7. In the meanwhile, relevant rules were re-framed by this Court, known as "High Court of Himachal Pradesh (Appellate Side) Rules, 1997". These rules were framed on 18th July, 1997 and were published in the Himachal Pradesh Government Gazette dated 12th August, 1997 and were to come into force with immediate effect. Rule 9 of Chapter-3 of the said Rules, reads as under : "9. If a party has been served in proceeding with notice there is no need for sending any other notice to him in the matter even if he remains absent without entering appearance in the case." 8. Rule 9 of Chapter-3 of the said Rules, reads as under : "9. If a party has been served in proceeding with notice there is no need for sending any other notice to him in the matter even if he remains absent without entering appearance in the case." 8. In view of the aforesaid Rules framed by this Court in the year 1997, when the appeal bearing RSA No. 224 of 1991 was put up for final hearing in the year 1997, actual date notice/intimation letters had not been sent to the respondents, including respondents No. 1 and 2. The arguments in the main appeal were heard by this Court on October 21, 1997 and the Judgment was reserved. At that time, the appellant was represented by his Counsel whereas no one was present on behalf of the respondents. Vide order dated 24.10.1997 passed by this Court, the appeal was allowed, Judgments and Decrees of the Courts below were set aside and the plaint was ordered to be returned to the plaintiffs under Order 7 Rule 10 CPC. Even at that time, the appellant was represented by his Counsel whereas no one had appeared on behalf of the respondents. 9. The learned Counsel appearing for the applicant(s) submitted before me that no notice was served upon the plaintiff-respondents No. 1 and 2, namely, Hira Singh and Basant Ram either in the year 1991 or in the year 1993 nor any actual date notice/intimation letter was sent to them intimating them about the final hearing of the appeal and as such applicant-respondents No. 1 and 2 could not have been proceeded against ex parte nor the arguments in the appeal could have been heard ex parte and as such the judgment and decree dated 24.10.1997 passed by this Court were liable to be set aside. However, I find no force in this submission of the learned Counsel. As referred to above, as per the High Court record, the respondents were duly served for 19.9.1991 at the time when the notice pending admission was issued to the respondents. Respondent No. 1 Hira Singh was personally served while respondent No. 2 Basant Ram was served through his real brother. As referred to above, as per the High Court record, the respondents were duly served for 19.9.1991 at the time when the notice pending admission was issued to the respondents. Respondent No. 1 Hira Singh was personally served while respondent No. 2 Basant Ram was served through his real brother. Even after the appeal was admitted, as per the office report, the respondents were duly served for 16.4.1993 inasmuch as respondent No. 1 Hira Sing was duly served while respondent No. 2 Basant Ram was served through his brother Hira Singh. Thus, from a perusal of the office report, it is clear that respondent Nos. 1 and 2, namely, Hira Singh and Basant Ram had been duly served not only for 19.9.1991, when the appeal was at the stage of notice pending admission, but also for 16.4.1993, after the appeal was admitted to regular hearing. 10. It is no doubt true that the original notices, which were duly served upon the respondents including respondents No. 1 and 2, namely, Hira Singh and Basant Ram, are not available on the record, but this is on account of the fact that the record containing notices etc. had been destroyed in pursuance of the rules framed by this Court. Rule 13 of Chapter 4 Part-II of the "High Court of Himachal Pradesh (Scrutiny, Maintenance of Judicial Records, Administrative and Executive Business) Rules, 1997", reads as under: "13. had been destroyed in pursuance of the rules framed by this Court. Rule 13 of Chapter 4 Part-II of the "High Court of Himachal Pradesh (Scrutiny, Maintenance of Judicial Records, Administrative and Executive Business) Rules, 1997", reads as under: "13. Part B of a judicial record and applications of a miscellaneous character filed with such record shall be destroyed before such record is consigned to the record room, provided that, where an appeal lies to the Supreme Court, Part B of the record of such appeal shall be preserved until the period for the presentation of an appeal has expired, or where an appeal has been made, till the judgment of the Supreme Court has been communicated to this Court: Provided also that when a case in this Court has been dismissed for default or heard ex-parte, Part B of the record shall not be destroyed until the expiry of six months from the date of the decision: Provided further that a Power of Attorney filed in a Civil Appeal in which a Letters Patent Appeal lies to the High Court shall be preserved until the period for the presentation of a Letters Patent Appeal has expired, or where an appeal has been made till the judgment therein has been pronounced." 11. From a perusal of the above, it would be clear that Part-B of the judicial record is required to be destroyed before the record is consigned to the Record Room or until the period for presentation of appeal before the Supreme Court and where the case has been dismissed in default or heard ex parte, Part-B of the record shall not be destroyed until expiry of six months from the date of decision. Thus, as per the aforesaid Rule, Part-B of the record (which includes notices etc.) was required to be destroyed in this case after the expiry of six months from the date of the decision of the appeal, since it was heard ex parte. As per the relevant register maintained by this Court, in which the entries are made regarding the destruction of record, there is an entry at Sr. No. 831 dated 28.10.1998, vide which the said record (Part-B) had been destroyed. As per the relevant register maintained by this Court, in which the entries are made regarding the destruction of record, there is an entry at Sr. No. 831 dated 28.10.1998, vide which the said record (Part-B) had been destroyed. Thus, the original notices, which were sent to the respondents and were duly served upon them for 19.9.1991 and 16.4.1993, were destroyed after the expiry of six months of the decision of the appeal and such original notices are not available on the record. However, as referred to above, a mention has been made by the office in the noting portion about the respondents, including respondents No. 1 and 2, namely, Hira Singh and Basant Ram, having been duly served for the aforesaid dates i.e. 19.9.1991 and 16.4.1993. In the absence of anything else on record, it shall be presumed that the respondents, including respondents No. 1 and 2, had been duly served as per the office notings, inasmuch as the official acts shall be presumed to have been done in accordance with law. 12. The learned Counsel then submitted before me that original notice should have been sent by registered post as provided under Rule 1 of Chapter 10 Part-B of the aforesaid High Court of Himachal Pradesh (Appellate Side) Rules, 1997 and in the present case, the said Rule having not been complied with, it could not be said that plaintiff-respondents No. 1 and 2 had been duly served in the appeal. However, I find no force in this submission as well as of the learned Counsel. As referred to above, in the original file of RSA No. 224 of 1991, there is nothing to indicate as to whether the notices were sent by registered post or otherwise and in the absence thereof, it could not be said that the notices were not sent to the respondents in a proper way or were not sent in the manner required by law. Further more, the aforesaid 1997 Rules were not in force at the time when the notices were sent to the respondents, including respondents No. 1 and 2, for 19.9.1991 and again for 16.4.1993. In this view of the matter, in my opinion, the learned Counsel cannot take any benefit of Rule 1 of the aforesaid Rules. 13. Further more, the aforesaid 1997 Rules were not in force at the time when the notices were sent to the respondents, including respondents No. 1 and 2, for 19.9.1991 and again for 16.4.1993. In this view of the matter, in my opinion, the learned Counsel cannot take any benefit of Rule 1 of the aforesaid Rules. 13. In view of the detailed discussions above, in my opinion, no case is made out for setting aside the ex parte Judgment and Decree dated October 24, 1997 passed by this Court while deciding RSA No. 224 of 1991 nor any case is made out for condoning the delay of more than 7 years in filing the application for setting aside the ex-parte Judgment and Decree dated October 24, 1997. 14. It may also be mentioned here at this stage that the plaintiff-respondents No. 1 and 2, namely, Hira Singh and Basant Ram were also respondents No. 1 and 2 in the appeal filed by defendants No. 3 to 5 before the District Judge. A perusal of the Judgment and Decree dated 1.3.1991 passed by the learned District Judge would clearly show that plaintiff-respondents No. 1 and 2, namely, Hira Singh and Basant Ram had not contested the appeal even before the learned District Judge and were ex-parte even at that time. This would clearly show that plaintiff-respondents No. 1 and 2, namely, Hira Singh and Basant Ram were in the habit of not putting appearance before the Courts in spite of service, inasmuch as these plaintiff-respondents did not contest the appeal before the District Judge as well. Furthermore, since the plaintiff-respondents No. 1 and 2 had not contested the appeal before the District Judge and were proceeded against ex-parte before the learned District Judge, in my opinion, even otherwise it was not necessary to serve them in the present appeal. On this ground as well, in my opinion, the present application seeking setting aside of the Judgment and Decree dated 24.10.1997 passed by this Court after condoning the delay in filing the said application, has to be dismissed. For the reasons recorded above, finding no merit in these applications, both these applications are hereby dismissed. CMP No. 253 of 2005 Infructuous. Application dismissed.