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2013 DIGILAW 1066 (PNJ)

Bal Kishan v. Dulla Ram

2013-08-14

L.N.MITTAL

body2013
JUDGMENT Mr. L. N. MITTAL, J.: (Oral) - CM No.17003-CII of 2013 Allowed as prayed for. MAIN CASE Defendants have filed this revision petition under Section 115 of the Code of Civil Procedure (in short, CPC), assailing judgment dated 06.09.2011 passed by the trial Court and judgment dated 25.05.2013 passed by the lower appellate Court thereby dismissing defendants’ application filed under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree dated 01.02.2010. 2. The defendants alleged that they had engaged counsel to defend the suit. The counsel told that presence of defendants was not required on each and every date of hearing and he would tell them whenever their presence would be required. However, mobile telephone of husband of defendant no.3 was lost and, therefore, there was no contact between the defendants and their counsel. The defendants also went to Madhya Pradesh to cultivate land there. Therefore, they were not in contact with their counsel. They learnt of the decree on 24.08.2010 only when their relative from the native village told them about warrant of possession. 3. Respondent-plaintiff denied the averments made in the application and pleaded that the defendants were proceeded against ex parte at the stage of final arguments in the suit. Defendants had availed of several opportunities for their evidence including two last opportunities with costs but defendants neither paid costs nor led any evidence. 4. Both the Courts below have dismissed the defendants’ application for setting aside ex parte judgment and decree. Feeling aggrieved, defendants have filed this revision petition. 5. I have heard learned counsel for the petitioners and perused the case file. 6. Counsel for the petitioners relying on five judgments of this Court namely Usha Rani versus Prem Singh, 2005(2) Civil Court Cases 492 (P&H); Balwinder Singh versus Tarsem Lal, 2001(1) Civil Court Cases 143 (P&H); Surinder Kumar versus Ram Nath and another, 2000(2) Civil Court Cases 1 (P&H); Jangir Singh versus M/s. Prem Motors, 2000(3) Civil Court Cases 491 (P&H) and Ram Niwas versus Smt. Gita Devi, 2009(2) Civil Court Cases 212 (P&H) and one judgment of Supreme Court in the case of Malkiat Singh & another versus Joginder Singh & others, 1998(2) Civil Court Cases 83 (SC), contended that after the counsel pleaded ‘no instructions’, in the trial Court, notice should have been sent to defendants and they could not be proceeded against ex parte. The contention is completely frivolous and meritless. There is no plea that defendants’ counsel had pleaded ‘no instructions’ and thereupon they were proceeded against ex parte. On the other hand, it has come in the impugned judgment of the trial Court that defendants were granted seven opportunities including last opportunity for their evidence, but they neither led evidence nor paid costs of adjournment. On the other hand, defendants were proceeded against ex parte when the suit was fixed for final arguments. Consequently, there is no ground for setting aside the ex parte judgment and decree passed by the trial Court. 7. Plea of the defendants that they could not contact their counsel cannot be accepted because of fast and easily available means of communication these days. Even if mobile telephone of husband of defendant no.3 had been lost, the defendants could have contacted their counsel through any other telephone or any of them could have visited the counsel. Even if the defendants had gone to Madhya Pradesh, they could have still contacted their counsel telephonically or otherwise. If such ground is accepted to set aside ex parte judgment and decree, then no plaintiff can succeed in the Courts. The defendants can adopt such delaying tactics by absenting themselves intentionally and then seeking setting aside of ex parte judgment. There is also no mandatory requirement of issuing notice to the party whose counsel pleads ‘no instructions’. If this course of action is accepted, then any party interested in delaying the suit can intentionally direct the counsel to plead ‘no instructions’ so that fresh process of issuing notice to the party would start and such process can be repeated many times. The contention in this regard is, therefore, untenable. Moreover in the instant case, the defendants were not proceeded ex parte on the basis of ‘no instructions’ by their counsel and no such ground was even pleaded by the defendants in their application. It was also the duty of the defendants to have contacted their counsel and not vice-versa. Thus no ground is made out for setting aside the ex parte judgment and decree. 8. The application filed by defendants on 01.09.2010 for setting aside ex parte judgment and decree dated 01.02.2010 is also barred by limitation having been instituted after seven months of the passing of the decree. Thus no ground is made out for setting aside the ex parte judgment and decree. 8. The application filed by defendants on 01.09.2010 for setting aside ex parte judgment and decree dated 01.02.2010 is also barred by limitation having been instituted after seven months of the passing of the decree. Limitation period for filing the application was thirty days and the said limitation period started from the date of decree because the defendants had been duly served in the suit and were also represented by their counsel. Consequently, the limitation period, having started from the date of decree, the application filed after seven months of the passing of the decree, was hopelessly barred by limitation and even application for condonation of delay in filing the said application was not moved. Even otherwise, there was no ground for condoning the said delay. 9. It is also worth mentioning that defendants alleged in the application that they learnt of the ex parte judgment and decree on 24.08.2010 only when their relative from the native village told them about warrant of possession. It appears that even name of the said relative was not disclosed in the application nor the said relative has been examined in support of this averment. Consequently it also cannot be said that defendants got knowledge of the decree on 24.08.2010 only. It would rather depict that defendants had knowledge of the decree since beginning and they approached the Court only when the decree was being executed. 10. The application is, therefore, also liable to dismissal on the ground of bar of limitation, notwithstanding that no such specific objection was taken by plaintiff-respondent. In view of Section 3 of the Limitation Act, a lis is liable to dismissal if filed after prescribed period of limitation, even if limitation has not been set up as a defence. Consequently, the application filed by the defendants is also liable to dismissal as time barred. For the reasons aforesaid, I find that application filed by the defendants has been rightly dismissed by the Courts below. Concurrent finding recorded by the Courts below in this regard does not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of limited revisional jurisdiction under Section 115 CPC. The aforesaid finding is also not shown to be based on misreading or misappreciation of the evidence. Concurrent finding recorded by the Courts below in this regard does not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of limited revisional jurisdiction under Section 115 CPC. The aforesaid finding is also not shown to be based on misreading or misappreciation of the evidence. The instant revision petition is not only meritless but is frivolous and deserves to be dismissed with costs so as to curb such frivolous litigation. Accordingly, the instant revision petition is dismissed with costs of Rs.10,000/-. If the costs amount is not deposited within one month, the case shall be listed for this purpose. ------------------