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2010 DIGILAW 590 (PNJ)

Bhushan Raj v. Sukhbir Singh

2010-01-25

AJAY TEWARI

body2010
Judgment Ajay Tewari, J. 1. This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the respondents holding that the respondents were owners in possession of the land in dispute and permanently restraining the appellants from interfering in their possession. The undisputed facts are that the suit was originally dismissed in default and was restored after three years without notice to the appellants. After restoration, as per the allegations of the appellants, notice was issued to them but they were never served. However, some counsel appeared for them on one date and thereafter stopped appearing. Therefore, the appellants were proceeded against ex parte and ultimately, the suit was decreed. 2. In appeal, the appellants took the plea that they had never authorised this counsel who had appeared on one occasion and that they have never been served in the restored suit. As mentioned above, their appeal was dismissed and consequently, they are before this Court. The following questions have been proposed -- (i) Whether in an appeal filed under Section 96(2) CPC against ex parte decree, the appellants are entitled to challenge validity of the ex parte decree on the ground of irregularity in proceedings including order directing ex parte proceedings against the defendants and findings of the Additional District Judge to the contrary cannot be sustained in view of provisions of Section 96 read with S. 105 CPC- (ii) Whether the judgments and decree of the courts below proceeding ex parte suffer from perversity, being contrary to the settled principles of law and therefore, cannot be sustained - (iii) Whether the ex parte decree obtained by the plaintiff in the present case by suppression of material facts regarding earlier litigation amounts to obtaining the decree by fraud and as such the same cannot be sustained - 3. In respect of Question No. 1, learned counsel has argued that no doubt, it was open to the learned Lower Appellate Court, alter examining the record, to hold that the plea of the appellants that they were never served or that they have never engaged the counsel was unsubstantiated. In that case, he may not have had any case. In respect of Question No. 1, learned counsel has argued that no doubt, it was open to the learned Lower Appellate Court, alter examining the record, to hold that the plea of the appellants that they were never served or that they have never engaged the counsel was unsubstantiated. In that case, he may not have had any case. However, learned Lower Appellate Court was wrong to hold that such a plea is not available in appeal Hied under Section 96 CPC and that the only remedy available to the appellants, in such a situation was to file an application under Order 9 Rule 13 CPC. In this regard, learned counsel has drawn my attention to the sub-Section 2 of Section 96 CPC under which an appeal may lie from an original decree passed ex parte. Learned counsel for the respondents is not in a position to deny the applicability of Section 96(2) CPC. Consequently, it has to be held that the finding of the learned Lower Appellate Court that the only remedy available with the appellants was to move the application under Order 9 Rule 13 CPC has to be rejected, and it has to be held that the appeal was maintainable. 4. Question Nos. 2 and 3 are questions on the merits of the case. In my opinion, it would be in the interest of justice, if the finding of the learned Lower Appellate Court on Question No. 1 is set aside and the matter is remanded back to the learned Lower Appellate Court wherein the entire appeal would be decided including the Question Nos. 2 and 3. Consequently, this appeal is allowed and the matter is remanded back to the learned Lower Appellate Court for fresh decision. Parties are directed to appear before District Judge, Amritsar, on 4.03.2010, who may either keep the appeal on his own board or mark the same to any Additional District Judge, working under his superintendence.