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2017 DIGILAW 598 (HP)

Roshan Lal v. Pritam Singh

2017-05-26

SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol, J. Whether with the order of remand, so passed in the case of one of the defendants, a co-defendant, who was also proceeded ex-parte, on the same date as that of the appellant-defendant, would be permitted to join the proceedings from the date of passing of the ex-parte order or not, is an issue which arises for consideration in the present petition. 2. Roshan Lal (petitioner herein), filed a suit for permanent injunction against Kashmiri Lal (dead), Pritam Singh, Dharam Singh, Satish Kumar alias Jaswant Singh and Joginder Singh (respondents herein). On 27.10.1994, Kashmiri Lal and Pritam Chand, amongst others, were proceeded ex-parte. On 18.11.1996, trial Court passed an ex-parte judgment and decree, which came to be assailed only by Kashmiri Lal. Vide judgment dated 17.03.2015, passed by Additional District Judge (II), Una, Circuit Court at Amb, District Una, H.P., in Civil Appeal No. RBT 129/13/04, titled as Kashmiri Lal Versus Roshan Lal & others, appeal came to be allowed in the following terms:- “8. In view of the observation made by the Hon’ble High Court of Himachal Pradesh, while dismissing the petition filed by the present respondent No.1, it is imperative that the contention raised in the grounds of appeal, that the appellant was wrongly ordered to be proceeded exparte, has to be accepted. Consequently, the judgment and decree under appeal is liable to be set aside. Since the matter at hand has been decided on a preliminary ground, it is unnecessary, or rather undesirable to delve into the merits of the other contentions taken in the grounds of appeal. Further, in the nature of the ground on which the impugned judgment and decree has been set aside, there is no alternative than to set aside the judgment and decree as a whole and to remand back the case to the learned trial Court to be decided fresh in accordance with law, proceeding from the point where the present appellant i.e. defendant No.1 had been ordered to be proceeded exparte. Ordered accordingly. The parties are left to bear their own costs. Decree sheet be drawn up accordingly. The appeal stands disposed of so also the pending applications if any. The parties through their learned counsel are directed to appear before the learned trial Court on 07.04.2015. Ordered accordingly. The parties are left to bear their own costs. Decree sheet be drawn up accordingly. The appeal stands disposed of so also the pending applications if any. The parties through their learned counsel are directed to appear before the learned trial Court on 07.04.2015. The trial Court record along with an attested copy of this judgment be sent back while the record of this court after its due completion be consigned to records.” 3. It is not in dispute that the said judgment, as also findings contained therein, have attained finality. Judgment and decree came to be set aside as a whole and the matter remanded back to the trial Court to be decided afresh, proceeding from the point from where defendant No.1 i.e. Kashmiri Lal had been ordered to be proceeded ex-parte, which was on 27.10.1994. As is evident, during the pendency of the suit, Kashmiri Lal expired. On 26.08.2015 and prior thereto, defendants had also filed written statement, which was taken on record. Subsequently plaintiff filed an application for “exclusion of the written statement filed by the defendants”, which stands rejected by the trial Court, in terms of the impugned order dated 19.05.2016, passed in CMA No. 148 of 2016, in Civil Suit No. 129 of 1993, titled as Roshan Lal Versus Kashmiri Lal. 4. It is a matter of record that prior to Kashmiri Lal as also other defendants being proceeded ex-parte, no written statement came to be filed by anyone of them. It is also not that right to file written statement or defence of the defendants was ever struck-off by the trial Court. No doubt, only one of the defendants had filed the appeal, but then, order passed by the Appellate Court, does not restrict the remand only qua the said defendant. On the other hand, the remand order is clear. The judgment and decree were set aside as a whole and matter remanded back for consideration afresh, in accordance with law, proceeding from the point where Kashmiri Lal had been ordered to be proceeded ex-parte. This is in fact the provisions of law. (Sangram Singh Versus Election Tribunal, Kotah and another, AIR 1955 SC 425 & Arjun Singh Versus Mohindra Kumar and others, AIR 1964 SC 993 ). 5. It is in this backdrop, one finds the trial Court not to have committed any illegality and irregularity. This is in fact the provisions of law. (Sangram Singh Versus Election Tribunal, Kotah and another, AIR 1955 SC 425 & Arjun Singh Versus Mohindra Kumar and others, AIR 1964 SC 993 ). 5. It is in this backdrop, one finds the trial Court not to have committed any illegality and irregularity. Also there is no impropriety in passing the impugned order dated 19.05.2016, passed by Civil Judge (Junior Division) Amb, District Una, H.P., in CMA No. 148 of 2016, in Civil Suit No.129 of 1993, titled as Roshan Lal Versus Kashmiri Lal. With the aforesaid observations, present petition stands dismissed, so also pending applications, if any.