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2006 DIGILAW 1528 (PNJ)

Balkar Singh v. Harnam Singh

2006-04-19

VINEY MITTAL

body2006
Judgment Viney Mittal, J. 1. On a request made by the learned Counsel for the petitioners at the outset, the present revision petition is treated to be a petition filed under Article 227 of the Constitution of India. 2. The defendants are the petitioners before this Court. 3. A suit for possession by way of pre-emption was filed by the plaintiffs against the defendants. During the course of trial, the plaintiffs led their evidence and thereafter the case was fixed for the evidence of the defendants. On May 24, 1985, which was date fixed for the evidence of the defendants, the defendants did not appear. Their counsel was not present. Consequently, vide an order passed on the aforesaid dated i.e. May 24, 1985, the evidence of the defendants was ordered to be closed under Order 17 Rule 2 of the Code of Civil Procedure. The Trial court also ordered that the defendants be proceeded against ex parte. On the same day, the learned trial Court, on the basis of the evidence of the led by the plaintiffs, decreed the suit. 4. An application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the exparte decree was filed by plaintiffs on July 16, 1985. It may be noticed here that with effect from June 15, 1985 the Civil Courts were closed on account of summer vacations. Thus, the application in question was filed on the very opening day after the summer vacations. In the application, the defendants took up the plea that they had wrongly noted the date as June 24, 1985 and as such could not appear our produce their evidence on May 24, 1985, which in fact was the date fixed for leading the evidence by the defendants. Counsel appearing for the defendants also took up a similar plea. It was additionally pleaded by the defendants in the application that their counsel told them that he was busy in the Court of Sessions on May 24, 1985 and, therefore, later on, he came to know that an ex parte decree had already been passed. This application filed by the defendants was contested by the plaintiffs. Various pleas were raised by way of contest. A plea of limitation was raised. 5. The learned trial Court held that the application filed by the defendants was within limitation, inasmuch as, the limitation for. This application filed by the defendants was contested by the plaintiffs. Various pleas were raised by way of contest. A plea of limitation was raised. 5. The learned trial Court held that the application filed by the defendants was within limitation, inasmuch as, the limitation for. setting aside the exparte decree being 30 days and the decree in question having been passed on May 24, 1985, an application for setting aside the said decree could be filed upto June 23, 1985 and on the aforesaid date, the civil Courts being closed for summer vacations, the application in question had been filed on the first opening day i.e. on July 16, 1985. Consequently, the objection taken by the plaintiff-decree holders in this regard was rejected. However, the learned trial Court held that there was no sufficient cause for setting aside the exparte decree. Consequently, the application filed by the defendants was dismissed. 6. The defendants took up the matter in appeal before the Appellate Court. The learned Additional District Judge affirmed the findings recorded by the trial Court and consequently dismissed the aforesaid appeal filed by the defendants. 7. The defendants are now before this Court by way of the present revision petition. 8. I have heard Sh. C.B.Goel, the learned Counsel appearing for the petitioners and with his assistance have also gone through the record of the case. 9. No one has chosen to appear on behalf of the respondents. 10. The facts which have been noticed above show that the defendants were duly defending the suit filed against them by the plaintiffs. It was only on one day i.e. on May 24, 1985 that they had not appeared before the trial Court. On account of the aforesaid non-appearance, the learned trial Court closed the evidence of the defendants on the same day and after hearing the arguments of the plaintiffs passed an ex-parte decree on the same day. The application in question had been filed by the defendants within the period of limitation. In this view of the matter, the learned Courts below have rightly held that the application filed by the defendants was within limitation. 11. From the perusal of the orders passed by the two Courts below, I find that a hyper-technical view has been adopted by the two Courts below in rejecting the claim made by the defendant. In this view of the matter, the learned Courts below have rightly held that the application filed by the defendants was within limitation. 11. From the perusal of the orders passed by the two Courts below, I find that a hyper-technical view has been adopted by the two Courts below in rejecting the claim made by the defendant. It has completely lost sight of the fact that the defendants had nothing to gain by remaining absent from the Court. As a matter of fact, very valuable rights of the defendants were involved and once the application had been filed by the defendants within limitation and there was no mala fide involved in the absence of the defendants on May 24, 1985, then the trial Court should have adopted a liberal approach in dealing with the controversy. 12. Consequently, the present revision petition is allowed. The orders passed by the Courts below are set aside. As a result thereof, the application filed by the defendant-petitioners under Order 9 Rule 13 of the Code of Civil Procedure is also allowed. As a consequence thereof, the exparte decree dated May 24, 1985 passed against the defendants shall stand set aside. The matter is remitted back to the trial Court for fresh decision of the case. The Trial court shall proceed with the suit from the stage the defendants were ordered to be produced against ex parte i.e. on May 24, 1985. The defendants shall be granted one opportunity to conclude their entire evidence. The defendants shall lead their entire evidence at their own responsibility and without the assistance of the Court. The costs of the present petition are assessed at Rs. 10,000/-. The costs would be a condition precedent for permitting the defendants to participate in the proceedings and lead evidence. 13. Since the matter has remained pending for a very long time, therefore, the trial Court is directed to decide the suit as expeditiously as possible. The parties shall appear before the trial Court on May 22, 2006.