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2019 DIGILAW 321 (SC)

Gurminder Singh v. Mangat Ram

2019-01-25

MOHAN M.SHANTANAGOUDAR, N.V.RAMANA

body2019
ORDER 1. Leave granted. 2. Present Appeal arises out of the impugned judgment and order dated 19.12.2017 in C.R.No. 680 of 2014 passed by the Punjab and Haryana High Court, wherein the revision petition preferred by the respondent defendant was allowed. 3. The appellants (original plaintiffs) had entered into an agreement for sale of the suit land with the respondent defendant on 09.02.1996. Despite receiving earnest money, the respondent defendant failed to execute and register the sale as per the agreement. This led to a suit for possession being filed by the appellants plaintiffs. Herein despite service through publication against the respondent defendant, no one appeared on his behalf. Consequently, the suit was proceeded against the respondent defendant ex parte and a decree of specific performance was passed against him on 09.06.2000. 4. The respondent defendant sought setting aside the ex parte decree by moving an application under Order IX, Rule 13 of CPC. This was dismissed by the Additional Civil Judge, Mukerian dated 07.10.2011 and on appeal, the said order came to be confirmed by the Additional District Judge, Hoshiarpur dated 04.10.2013. The aggrieved respondent defendant thereupon filed an application under Order IX, Rule 13 of CPC before the High Court which was allowed by the impugned order herein. 5. We have heard the learned counsel appearing for the parties. 6. A perusal of the impugned order passed by the High Court indicates that it has set aside the ex parte order passed by the Additional Civil Judge on the sole ground that the Additional Civil Judge should have issued summons by following the procedure laid down in Order V Rule 25 of CPC as the respondent defendant was residing outside India. 7. Having given our consideration to the case at hand, we are of the opinion that merely on the basis of the claim of respondent defendant that he was out of the country at the relevant time, his application to set aside the ex parte decree ought not to have been allowed by the High Court, particularly when there is no valid proof in support of this claim. Further, we find no material on record to substantiate the claim of respondent defendant. Hence, the reliance placed by the High Court on Order V Rule 25 of CPC in such a case, was misplaced. 8. Further, we find no material on record to substantiate the claim of respondent defendant. Hence, the reliance placed by the High Court on Order V Rule 25 of CPC in such a case, was misplaced. 8. In view of the above, we set aside the order passed by the High Court and restore the order dated 07.10.2011 passed by the Additional Civil Judge, Mukerian. 9. The appeal stands allowed accordingly with no order as to costs.