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2011 DIGILAW 2554 (HP)

Devi Ram v. Nikku Ram

2011-11-25

V.K.SHARMA

body2011
JUDGMENT : V.K. Sharma, J. In a suit for grant of a decree of declaration with consequential relief of perpetual prohibitory injunction and partition filed by the original plaintiffs, Taonu and Prem Dass, the petitioner herein, Devi Ram, who was defendant No. 5 before the learned trial court, was proceeded against ex parte vide order dated 18.11.1988. The suit, which was filed on 03.08.1988 and was contested by some of the defendants, was ultimately decreed vide judgment and decree dated 19.04.1994 as under: "Relief 15. As a result of my findings on the above issues particularly issue No. 1, the suit of the plaintiff for declaration is decreed and it is declared that plaintiff No. 1, Taonu is having 1/6th share, plaintiff No. 2 Prem Lal, Defendant No. 9 Sudama and Bansi, Defendant No. 101/3rd share, Gopala, defendant No. 4 1/6th share, Jainda defendant No. 1, Shankari defendant no. 2 1/9th share, Bhajnu defendant No. 3 1/9th, Devi Ram defendant No. 5, Atma Ram defendant No. 6, Nanak defendant No. 7 and defendant No. 8 Durga 1/9th share in the suit land. Parties are left to bear their own costs." 2. Later on, on 29.06.2004, defendant No. 5, Devi Ram, filed an appeal in the court of the learned District Judge, Bilaspur, laying challenge against the aforesaid judgment and decree dated 19.04.1994, which was passed against him ex parte. Alongwith the appeal he also moved an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. However, the prayer of condonation of delay in filing the appeal was denied by the learned District Judge vide order dated 07.07.2006 and by necessary implication the appeal stood dismissed as barred by time. 3. I have heard the learned counsel for the parties and gone through the record. 4. It is submitted by the learned Senior counsel appearing on behalf of defendant No. 5 that the said defendant was not properly served in the suit and as a consequence the order dated 18.11.1988, whereby he was proceeded against ex parte and on the same analogy the final judgment and decree dated 19.04.1994 passed against him ex parte, are bad in law. It is further submitted that defendant No. 5 had come to know about the ex parte order dated 18.11.1988/ex parte judgment and decree dated 19.04.1994 only on 04.06.2004, on obtaining copy of the mutation dated 11.02.1997, sanctioned on the basis of the aforesaid judgment and decree dated 19.04.1994. Reliance is placed on AIR 1989 Madhya Pradesh 330, Smt. Chhutbai and another v. Madanlal and another, AIR 1989 Himachal Pradesh 26, Singh v. Purbia, 1996 (2) CLJ (HP) 22, H.P. Milk Federation v. Smt. Sunni Devi & Ors., (2000) 3 SCC 54 , G.P. Srivastava v. R.K. Raizada and others, (2002) 5 SCC 377 , Sushil Kumar Sabharwal v. Gurpreet Singh and others and (2005) 10 SCC 635 , Surinder Kumar v. Harbhajan Singh. 5. Per contra, the learned counsel for the original plaintiffs submits that since defendant No. 5 had failed to put in appearance before the learned trial court despite valid service, he was rightly proceeded against ex parte. It is further submitted that he had all through notice of the initial date of hearing fixed in the suit for 18.11.1988 as also the subsequent proceedings in the suit and the final judgment and decree dated 19.04.1994 passed therein and as such had sufficient time to appear and answer the plaintiffs' claim. 6. The crux of the grounds pressed into service in support of the prayer for condonation of delay in filing the appeal by defendant No. 5 is that on or about 18.11.1988 he was posted at Kaza in District Lahul and Spiti and was residing there along with his family and as such in his absence from his native place co-defendant No. 8, Durga, who is his real brother, was neither residing with him nor was authorised in law to accept service of summons in the suit on his behalf. The further contention is that the report of the Process Server on the summons, a copy of which has been brought on record in the present petition as Annexure P-2, is also not endorsed by any witness. 7. The ground for condonation of delay in filing the appeal is that on 01.06.2004 respondent No. 1, Nikku Ram, who is son of the original plaintiff No. 1, Taonu, threatened him that he would dispossess him from the land in his possession. 7. The ground for condonation of delay in filing the appeal is that on 01.06.2004 respondent No. 1, Nikku Ram, who is son of the original plaintiff No. 1, Taonu, threatened him that he would dispossess him from the land in his possession. Consequently, on enquiry from the Halqua Patwari he came to know that mutation No. 1278 had been attested by AC II Grade, Ghumarwin, on 11.02.1997, vide which the suit land was partitioned. Resultantly, he applied for copy of mutation on 03.06.2004, which was supplied to him on 04.06.2004 and consequently the appeal along with the application for condonation of delay in filing the same was drafted on 28.06.2004 and was filed on 29.06.2004. 8. Now while adverting to the contention raised on behalf of defendant No. 5 that on or about 18.11.1988 he was posted at Kaza in District Lahul and Spiti and that he came to know about ex parte order dated 18.11.1988 leading to passing of the aforesaid judgment and decree dated 19.04.1994 which was passed against him ex parte only on 04.06.2004 is concerned, it would be seen that the copy of said mutation was not filed by him either with the appeal or the application for condonation of delay in filing the same in the court of the learned District Judge. Thus, to my mind the learned District Judge was absolutely correct in drawing the inference that had the copy of mutation been brought on record the same could have gone to support the version of defendant No. 5 and as such adverse inference was bound to be drawn against him to the effect that had the copy of mutation been brought on record the same would have gone to show that it was sanctioned in his presence. 9. With regard to the contention on behalf of defendant No. 5 that on or about 18.11.1988 he was posted at Kaza and was living with his family, again the finding returned by the learned District Judge that the contention stood falsified even from the additional evidence led by him in the application under Section 5 of the Limitation Act, wherein he had filed details of his postings from April, 1988 to July, 1994 as per which he was posted at Bilaspur at the relevant time, that is, on or about 18.11.1988. With regard to the assertion on behalf of defendant No. 5 that defendant No. 8, Durga, who had accepted service of summons on his behalf was not having cordial relations with him is concerned, there is no other reliable and cogent evidence to this effect accept his self-serving statement, which in the facts and circumstances of the case cannot be safely relied upon. Furthermore, defendant No. 5 has admitted that original defendant No. 6, Atma Ram, who is also his real brother, was looking after his lands. The record reveals that the said Atma Ram was also served in the suit and after putting in appearance had filed written statement and thereafter committed default in appearance and was also proceeded against ex parte. Original defendants No. 6 and 7, Atma Ram and Nanak, respectively, are also real brothers of defendant No. 5, they were also served in the suit and after putting in appearance on 18.11.1988 had later on committed default in appearance and were also proceeded against ex parte. In such circumstances, when three of the brothers of defendant No. 5 were aware about filing of the suit and one of them, namely, Atma Ram, was also admittedly looking after the lands belonging to defendant No. 5, it cannot be believed even by any stretch of imagination that he had no knowledge about the proceedings in the suit in which he was proceeded against ex parte and had ultimately suffered ex parte judgment and decree dated 19.04.1994. 10. 10. Insofar as the contention on behalf of defendant No. 5 that report on summons (Annexure P-2) is not authenticated by any witness is concerned, suffice it to say that in view of second proviso to Rule 13 of Order 10 of the Civil Procedure Code (in short 'the CPC') such an irregularity in the service of summons cannot be made a ground for setting aside the decree passed ex parte against defendant No. 5 when it can be safely concluded that he was throughout in the know of the proceedings culminating into passing of the aforesaid judgment and decree dated 19.04.1994 against him ex parte and more so when the intervening period between the date of initial ex parte order dated 18.11.1988 on the one hand and passing of the aforesaid judgment and decree dated 19.04.1994 on the other and filing of the appeal in the year 2004 is about six years and ten years, respectively. 11. Even otherwise, judgment and decree dated 19.04.1994 suffered by defendant No. 5 ex parte is only with respect to declaration of the respective shares of the parties, including defendant No. 5, in the suit land based on the entries in the revenue record and does not adversely effect any of his valuable civil rights entailing evil consequences. 12. In view of the above, I am more than satisfied that the impugned order dated 07.07.2006, passed by the learned District Judge, does not suffer from any infirmity on the touchstone of Section 115 CPC. The petition is accordingly dismissed.