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Rajasthan High Court · body

2017 DIGILAW 2077 (RAJ)

Lrs. of Parkha Kumhar v. Lrs. of Babu Lal

2017-09-18

ARUN BHANSALI

body2017
ORDER : Arun Bhansali, J. 1. Though, the matter comes up for orders on stay application, with the consent of learned counsel for the parties, the appeal is finally heard. 2. This appeal filed by the appellants-legal representatives of Parkha is directed against order dated 5.12.2006 passed by the Addl. District Judge, Bhinmal, District Jalore, ('the trial court'), whereby, the application filed by the appellants under Order 9, Rule 13 CPC seeking setting aside of the ex-parte decree dated 19.1.2001, has been rejected. The suit seeking specific performance of agreement to sell dated 31.5.1996, was filed by Babu Lal against Parkha. After written statement and replication were filed by the parties, issues were framed on 25.2.2000 and the matter was fixed for evidence of the defendant-Parkha on 31.3.2000. 3. An application under Order 22, Rule 4 CPC was filed by the plaintiff, inter alia, indicating that Parkha the sole defendant had expired on 3.3.2000. Notices of the application were issued to the proposed legal representatives, who though were served from time to time, did not appear before the trial Court. 4. The trial court by its order dated 17.11.2000 on account of non-appearance of any of the proposed legal representatives, ordered for proceeding ex-parte, closed the evidence of the defendant-Parkha and fixed the matter for evidence of the plaintiff on 15.12.2000. After evidence were led by the plaintiff, the suit was ex-parte decreed on 19.1.2001. 5. The present application under Order 9, Rule 13 CPC along with the application under Section 5 of the Limitation Act, was filed on 4.9.2001 by the legal representatives of deceased-Parkha seeking setting aside of ex-parte decree dated 19.1.2001. The application was opposed by plaintiff-Babu Lal. 6. The trial court by its impugned order dated 5.12.2006, came to the conclusion that all the legal representatives of deceased-Parkha were served with the notices of application under Order 22, Rule 4 CPC and despite proper service on them, they chose not to appear and, therefore, ex-parte proceedings were ordered to be initiated on 11.8.2000 against few of the proposed legal representatives and against other legal representatives on 13.10.2000 and as the legal representatives-applicants chose not to appear, the passing of the ex-parte decree was justified and the application filed under Order 9, Rule 13 CPC had no substance and consequently, rejected the said application. 7. 7. It is submitted by learned counsel for the appellants that the procedure adopted by the trial court is ex-facie incorrect and has lead to serious prejudice to the appellants and they have been deprived of their property without any opportunity of hearing and, therefore, the order impugned deserves to be quashed and set aside. It was submitted that the notices of application under Order 22, Rule 4 CPC, were issued to the appellants, which were though served, no order was passed on the said application by the trial court as and when the notices were served on respective legal representatives, marked the matter as ex-parte qua the each legal representative and ultimately passed the decree ex-parte after recording evidence of the plaintiff. 8. It was submitted that the appellants were never served with the summons of the suit and, therefore, the suit could not proceed ex-parte against them and as the procedure adopted by the trial court is ex-facie incorrect, the order impugned deserves to be quashed and set aside and the appellants be accorded opportunity to contest the suit on merits. 9. Learned counsel appearing for the respondent-plaintiff supported the order impugned. It was submitted that copy of the application under Order 22, Rule 4 CPC was served on all the legal representatives besides their counsel, who was representing Parkha, who continued to represent the legal representatives, as he attended all the subsequent proceedings before the trial court and, therefore, it cannot be said that the appellants were unaware of the pendency of the suit and passing of the ex-parte decree and, therefore, the trial court was justified in rejecting the application seeking setting aside of the ex-parte decree. 10. Further submissions were made that the execution proceedings are almost complete, wherein, already the draft of the sale deed has been presented before the Executing Court and in those circumstances also, the order impugned does not call for any interference. 11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. 11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. Insofar as, the fact about service of notices of application filed by the plaintiff under Order 22, Rule 4 CPC on the proposed legal representatives of Parkha i.e. the present appellants is concerned, the same is not in dispute, however, the procedure thereafter adopted by the trial court is wholly incorrect and in fact has lead to passing of a decree against the appellants without according any opportunity of hearing. Insofar as, the suit is concerned, once the notices of application under Order 22, Rule 4 CPC were served on the appellants i.e. the proposed legal representatives and they chose not to appear, the trial court was required to accept the application under Order 22, Rule 4 CPC, take the legal representatives on record and thereafter, issue summons of the suit to the legal representatives, however, the trial court did not even allow the application filed by the plaintiff under Order 22, Rule 4 CPC and straightaway ordered for proceeding of the matter ex-parte against the proposed legal representatives, closed the evidence of the defendant and fixed the matter for evidence of the plaintiff and after evidence were led by the plaintiff, passed the ex-parte decree on 19.1.2001. 13. The procedure adopted by the trial court in not passing order on application under Order 22, Rule 4 CPC and failure to issue summons to the legal representatives of deceased-Parkha has resulted in passing of the ex-parte decree, which by itself cannot be sustained. 14. Once the application under Order 9, Rule 13 CPC was filed by the legal representatives, the trial court by the impugned order only on noticing that the appellants herein were served with the notice of application under Order 22, Rule 4 CPC and chose not appear, rejected the application under Order 9, Rule 13 CPC, which rejection also cannot be sustained. 15. However, the very fact that the appellants were aware of the pendency of the suit as well as the fact that the counsel, who ultimately filed application under Order 9, Rule 13 CPC continued to appear before the trial court even after the death of Parkha, the conduct of the appellants cannot be said to be unblemished and, therefore, they are required to pay cost of Rs. 10,000/-. 16. 10,000/-. 16. Consequently, the appeal is allowed. The order dated 5.12.2006 passed by the trial court is set aside. The application filed by the appellants under Order 9, Rule 13 CPC is allowed on payment of cost of Rs. 10,000/- to the plaintiff/counsel for the plaintiff, the cost be paid by 25.10.2017, on which date the parties shall appear before the trial court. 17. The order dated 17.11.2000 passed by the trial court is also set aside. The trial court would proceed with the suit from before the stage of accepting the application under Order 22, Rule 4 CPC, pass formal order on the application and then proceed in accordance with law. The trial court is directed to proceed with the suit as expeditiously as possible and decide the same preferably within a period of one year from the date of appearance of parties before it i.e. 25.10.2017. 18. It is made clear that all the parties would appear before the trial court either personally or through their counsel and no fresh notices/summons would be required to be issued by the trial court.