Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 116 (PNJ)

Inderjit Singh and Another v. Hari Singh

2014-01-14

SABINA

body2014
Sabina, J. Petitioners have filed this petition challenging the orders dated 22.07.2005 and 27.07.2013. Respondent No. 1 had filed the suit for declaration that he was Sant of Dera Hamam Singh, Ward No. 3, Zira on the basis of Majornama dated 22.11.1989. Notice was issued to the defendants. Defendant No. 1 Manohar Singh appeared and filed his written statement. 2. On 01.02.1996, following order was passed by the trial court:- Sh. N.K. Aggarwal counsel for the defendant has made statement that he has no instructions for today to pursue the case on behalf of defendant. In view of this statement, the defendant is proceeded against ex-parte. Two PWs are present. Let they be examined. Cost not paid. 3. Thereafter, plaintiff led his evidence in support of his case. Trial court decreed the suit of the plaintiff vide judgment/decree dated 25.05.1996. Defendant No. 1-Manohar Singh moved an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (in short 'CPC') for setting aside the ex parte decree dated 25.05.1996. Trial court vide impugned order dated 22.07.2005 dismissed the application filed by defendant No. 1-Manohar Singh. The said order was upheld by the Appellate Court vide impugned judgment dated 27.07.2013. Hence, the present petition by the legal heirs of Manohar Singh-defendant No. 1. 4. Learned counsel for the petitioners has submitted that the trial court had erred in initiating ex parte proceedings against defendant No. 1-Manohar Singh, as the counsel for Manohar Singh had pleaded no instructions. In fact, notice should have been issued to defendant No. 1. In support of argument, learned counsel has placed reliance on Malkiat Singh and another Vs. Joginder Singh and others 988 (2) Civil Court Cases 83 (SC). 5. In the present case, admittedly, Manohar Singh-defendant No. 1 had filed his written statement. A perusal of the order passed by the trial court dated 01.02.1996 reveals that costs had been imposed on the defendant. On 01.02.1996 costs were not paid and the counsel for the defendants pleaded no instructions. Since the costs had also not been paid on 01.02.1996 by the defendants, their defence was liable to be struck off. It is another matter that the counsel for the defendants had also pleaded no instructions on the said date. On 01.02.1996 costs were not paid and the counsel for the defendants pleaded no instructions. Since the costs had also not been paid on 01.02.1996 by the defendants, their defence was liable to be struck off. It is another matter that the counsel for the defendants had also pleaded no instructions on the said date. In these circumstances, the judgment relied upon by learned counsel for the petitioners fails to advance the case of the petitioners as it is based on different facts. Thus, in the present case, Manohar Singh-defendant No. 1 was aware of the pendency of the proceedings and was also aware of the fact that he had to deposit costs on 01.02.1996. It is not a case where defendant No. 1 was not aware of the proceedings. On the said date, defendant No. 1 failed to appear or deposit costs and his counsel pleaded no instructions. In these circumstances, the trial court left with no other alternative, initiated ex parte proceedings against defendant No. 1. The suit was ultimately decided on 25.05.1996. Till the pendency of the suit, defendant No. 1 Manohar Singh made no effort to appear before the trial court. 6. In these circumstances, the courts below rightly held that the application under Order 9 Rule 3 CPC was liable to dismissed. 7. Hence, no ground for interference is made out. Dismissed.