Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 1161 (PNJ)

Vivek Malhotra v. Ajit Kaur Gill

2014-08-05

RAJIV NARAIN RAINA

body2014
JUDGMENT : Rajiv Narain Raina, J. Heard Mr. Aashish Chopra, learned counsel for the petitioner and Mr. M.L. Sarin, learned senior counsel appearing on caveat on behalf of contesting respondent No. 1. The remaining respondents are not contesting parties. By consent, the matter is taken on board for final disposal. The land in dispute measures 1K-1M being 3/8th share of land comprised in Rectangle No. 45, Killa No. 11/2 (4-4) situated in Revenue Estate of Village Gopalpur, Tehsil and District Gurgaon. Defendant-respondent No. 1 Ajit Kaur Gill purchased land measuring 3K-3M i.e. 3/4th share out of the land in Rectangle No. 45, Killa No. 11/2 (4-4) by way of a registered sale deed bearing Vasika No. 7901 dated 4th March, 1985. Ajit Kaur Gill further sold a part of the land in dispute to defendant-respondents No. 2 and 3 namely Babu Lal Sharma and his wife Smt. Maya Devi. 2. Plaintiff Preet Pal filed the present suit for declaration and alternatively for possession with consequential relief of permanent injunction on 6th January, 2006 praying that the sale deed bearing Vasika No. 7901 dated 4th March, 1985 and subsequent sale deed in favour of defendant-respondents No. 2 and 3 are liable to be ignored and are not binding on his rights as he was a minor when the alienation took place. Further that the plaintiff is owner in possession of the suit land. Prayer in suit is also for permanent injunction regarding selling/alienating etc. the suit land. In the suit, the name of Ajit Kath Gill was mentioned as 'Amrit Kaur Gill'. 3. Notice of the suit was issued to the defendants on 9th January, 2006. 4. Babu Lal Sharma and Maya Devi were proceeded against ex parte by the learned trial Court. 5. Till 8th August, 2007, Ajit Kaur Gill was not served with the summons as the plaintiff respondent No. 1 had given her wrong name and address. It was on this date that the learned trial Court ordered that 'Amrit Kaur Gill' (real name Ajit Kaur Gill) be served by way of publication in the Dainik Jagran by substituted service. 6. Publication was carried out in the press media. However, the name in the newspaper was still intentionally mentioned as 'Amrit Kaur Gill D/o. Sh. It was on this date that the learned trial Court ordered that 'Amrit Kaur Gill' (real name Ajit Kaur Gill) be served by way of publication in the Dainik Jagran by substituted service. 6. Publication was carried out in the press media. However, the name in the newspaper was still intentionally mentioned as 'Amrit Kaur Gill D/o. Sh. Pritpal Singh Gill S/o. Nawab Singh R/o H. No. 32, NDSE, New Delhi.' As no one appeared on behalf of Amrit Kaur Gill despite publication, the learned trial Court ordered that she be proceeded against ex parte. The learned trial Court decreed the suit of Preet Pal ex parte. Babu Lal Sharma and Maya Devi filed an appeal against the judgment and decree of the learned trial Court dated 22nd December, 2012. 7. Ajit Kaur Gill on discovering that a decree had been passed against her ex parte filed an application under Order 9 Rule 13 read with Section 94 and 151 C.P.C. before the learned trial Court seeking to set aside the ex parte decree dated 22nd December, 2012. The specific ground was taken that the plaintiff (Preet Pal) had intentionally wrongly mentioned her name as 'Amrit Kaur Gill' and not Ajit Kaur Gill to secure a decree. 8. In the application under Order 9 Rule 13 C.P.C. filed by Ajit Kaur Gill, the learned trial Court stayed the operation of the judgment and decree dated 22nd December, 2012. Preet Pal appeared in person in the Civil Court and sought time to file reply and the stay was extended till the next date of hearing i.e. 10th May, 2013. The stay was ordered to continue. Preet Pal despite being aware of the stay order granted by the trial Court entered into an agreement to sell suit property to third party petitioner for a sale consideration of Rs. 55 lacs. The agreement to sell specifically mentions the pendency of the application under Order 9 Rule 13 filed by respondent Ajit Kaur Gill. 9. Preet Pal got the mutation sanctioned with respect to land measuring 1K-1M comprised in Rectangle No. 45, Killa No. 11/2 (4-4) in the revenue records vide Intkal No. 1513 on the basis of the ex parte order and decree dated 22nd December, 2012. The mutation shows change of ownership from Ajit Kaur Gill to Preet Pal Singh. 10. 9. Preet Pal got the mutation sanctioned with respect to land measuring 1K-1M comprised in Rectangle No. 45, Killa No. 11/2 (4-4) in the revenue records vide Intkal No. 1513 on the basis of the ex parte order and decree dated 22nd December, 2012. The mutation shows change of ownership from Ajit Kaur Gill to Preet Pal Singh. 10. On 3rd May, 2013, in accordance with the agreement to sell dated 22nd April, 2013, a sale deed was executed by Preet Pal in favour of the petitioner. Petitioner Vivek Malhotra also got the mutation sanctioned in his favour with respect to land measuring 1K-1M comprised in Rectangle No. 45, Killa No. 11/2 (4-4) in the revenue records vide Intkal No. 1514 on the basis of sale deed dated 3rd May, 2013. 11. The petitioner Malhotra filed the present application for impleading him as a respondent in the application under Order 9 Rule 13 C.P.C. in the proceedings initiated by Ajit Kaur Gill. The ground furnished for seeking impleadment was that he had purchased the suit property from Preet Pal vide registered sale deed dated 3rd May, 2013 and that having paid the entire sale consideration, he feared that Preet Pal may not defend the case appropriately. The petitioner also filed an application under Order 1 Rule 10 C.P.C. seeking to be impleaded as a party in the appeal filed by Babu Lal Sharma and Maya Devi. 12. The learned Appellate Court vide a detailed order dismissed the application (in the appeal filed by Babu Lal Sharma and Maya Devi) filed by the petitioner Malhotra under Order 1 Rule 10 C.P.C. Aggrieved, the petitioner filed CR No. 6218 of 2013 before this Court against the order of the learned District Judge dated 6th September, 2013. 13. The learned trial Court has held in the impugned order that the transfer in favour of the applicant-petitioner was made despite a stay order from court and that transferee pendente lite is neither a proper nor a necessary party in proceedings under Order 9 Rule 13 C.P.C. Therefore, the learned trial Court on these premises dismissed the application filed by the applicant-petitioner. 14. 14. The present petition has been filed against the order of the learned trial Court dismissing the application filed under Order 1 Rule 10 C.P.C. in the application under Order 9 Rule 13 C.P.C. filed by Ajit Kaur Gill praying for setting aside the ex parte decree. 15. The moot point for determination in the present case is whether the petitioner has any accrued or vested right to oppose the application of Ajit Kaur Gill for setting aside the ex parte decree in favour of Preet Pal drawn on 22nd December, 2012 filed under Order 9 Rule 13 C.P.C. for the reason that he had entered into an agreement to sell with Preet Pal on 22nd April, 2013 which was converted into a sale deed on 3rd May, 2013. Then could this be done in the presence of an interim order dated 15th March, 2013 staying the operation of the judgment and decree dated 22nd December, 2012 especially when the agreement to sell of the suit property specifically mentions the pendency of the application under Order 9 Rule 13 C.P.C. for setting aside the ex parte decree. For obvious reasons, the petitioner is not a party to the main suit. It cannot be lost sight of that the ex parte decree has not been set aside so far and is pending adjudication in the application under Order 9 Rule 13 C.P.C. at the hands of Ajit Kaur Gill purchaser of the suit property from Preet Pal who was allegedly a minor when the sale deed dated 4th March, 1985 was executed in favour of respondent No. 1 Ajit Kaur Gill. 16. In the event of the ex parte decree being set aside, the petitioner may invoke the principles of law enunciated by the Supreme Court in Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and Others, to protect his direct and substantial interest in the property, if any, but at the present stage, he appears to have no right to oppose the prayer of respondent No. 1 Ajit Kaur Gill for setting aside the ex parte decree and can thus have no legal right to enter the proceedings via Order 1 Rule 10 C.P.C. to oppose the prayer on rights which presently are exclusive to the respondent to reopen the case for a decision on merits. The prayer is clearly premature. 17. The prayer is clearly premature. 17. A similar prayer made by him in the appeal filed by Babu Ram Sharma and Maya Devi against the decree where Ajit Kaur Gill was ex parte has been turned down by the lower Appellate Court and his application under Order 1 Rule 10 C.P.C. therein has been dismissed against which the petitioner is before this Court in CR No. 6218 of 2013 in challenge to the order dated 6th September, 2013. The petition is stated to be pending hearing without any interim orders passed in the proceedings. 18. In these set of circumstances, the impugned order passed by the Civil Judge (Junior Division), Gurgaon on 24th April, 2014 is not open to correction in its conclusion which in many words is that at the present stage, he the petitioner has insufficient locus standi to enter the proceedings pending Order 9 Rule 13 C.P.C. The two stages are clearly distinct; one, is the stage when the ex parte judgment and decree stand but have been made inoperable by an interim stay order, the petitioner being a purchaser subsequent to the order of stay. The second stage can arise only in the event of success of the application under Order 9 Rule 13 C.P.C. which stage is not reached yet. That bridge is not reached for the petitioner to cross. When that bridge is reached, it will always be open to the petitioner to apply under Order 1 Rule 10 C.P.C. in which event, the learned trial Court would examine his application and consider the same on merits in accordance with law. The interim order of stay of judgment and decree will be accordingly read till the outcome of the proceedings initiated for setting aside the ex parte decree. The petition stands dismissed without disturbing during the interregnum the effect of the impugned order.