ABDUL SATTAR Vs. SUNIL PUNDEER AND ORS.

JUDGEMENT

(1.) PRESENT petition is filed challenging the judgment and order dated 9.9.2013 passed by the Civil Judge (J.D.), Vikas Nagar Dehradun in Misc. Case No. 24 of 2013 as well as judgment and order dated 13.11.2013 passed by the learned District Judge, Dehradun in Civil Revision No. 169 of 2013. Brief facts of the present case, inter alia, are that Janardan/respondent No. 3, herein, was the earlier owner in possession of the property in question. Janardan/respondent No. 3, herein, allegedly executed an agreement to sell in favour of Abdul Sattar pertaining to the property in question. As per the agreement dated 17.1.1996, last date to execute sale deed in favour of Abdul Sattar was 16.12.1996. Janardan/respondent No. 3, herein, after the last date to execute sale deed i.e. 16.12.1996, on 27.12.1996 executed one sale deed in favour of Randhir Chaddha. Abdul Sattar/Petitioner, herein, thereafter filed suit for specific performance on 30.5.1997 against Janardan only. It is important to mention herein that on 30.5.1997, when suit for specific performance was filed by Abdul Sattar against Janardan, Janardan was not the owner of the property in question since he had already created third party interest in favour of Randhir Chaddha on 27.12.1996 i.e. prior to filing of the suit for specific performance, however, for the reasons best known to Abdul Sattar, Randhir Chaddha was not impleaded as party defendant in as suit for specific performance being O.S. No. 313 of 1997. Since Janardan was having absolutely no interest in the property in question in view of the fact that he had already sold the property in favour of Randhir Chaddha on 27.12.1996, therefore, Janardan opted not to contest the suit for specific performance i.e. O.S. No. 313 of 1997. Meanwhile, Randhir Chaddha, a purchaser from Janardhan, sold the property in question in favour of Sunil Pundeer on 2.11.2004. Suit for specific performance was decreed against Janardan ex parte on 6.3.2010. Pursuant to the ex parte decree, a sale deed was executed by the court on behalf of Janardan in favour of Abdul Sattar on 13.10.2011. Sunil Pundeer having come to know about ex parte decree and ex parte execution, filed an application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 6.3.2010. It was specifically stated in the application for setting aside ex parte decree that since Janardan was not the owner on the date of filing of the suit for specific performance dated 30.5.1997, in view of the fact that Janardan had already sold the property in favour of Randhir Chaddha on 27.12.1996, therefore, neither Randhir Chaddha had any knowledge about filing and pendency of the suit nor purchaser from Randhir Chaddha i.e. Sunil Pundeer had any occasion to acquire knowledge about the pendency of the suit or ex parte decree passed therein. It was further stated that since Janardan was not having any title or interest in the property in question on the date of filing of the suit for specific performance, therefore, Janardan opted not to contest the suit and had allowed the suit to be decreed ex parte and by the ex parte decree the only aggrieved person is Sunil Pundeer, who had purchased the property from Randhir Chaddha. Learned Trial Court as well as the learned Revisional Court were pleased to set aside the ex parte decree dated 6.3.2010. Feeling aggrieved, Abdul Sattar/original plaintiff has filed the present writ petition invoking Article 226/227 of the Constitution of India.

(2.) SUNIL Pundeer moved an application under Section 144 of CPC for restitution of the possession in view of setting aside of the ex parte judgment and decree. One more development took place. The original plaintiff Abdul Sattar transferred the suit property in favour of Gaurav Singh after the ex parte decree and thereafter Gaurav Singh filed suit for injunction against Sunil Pundeer, wherein application seeking ad interim injunction was rejected. Feeling aggrieved, Gaurav Singh has preferred Appeal from Order No. 78 of 2014.

(3.) SINCE present petition and appeal from order are interconnected and decision in the present petition shall affect the merit of the appeal, therefore, with the consent of learned counsel for the parties, present petition and appeal from order are taken up together for hearing and are being disposed of by this common judgment.