COMMISSIONER OF INCOME TAX Vs. SURENDRA SINGH PAHWA

JUDGEMENT

(1.) Both these appeals, being in a sense, interconnected, it would be convenient to dispose them of by a common order. While First Appeal No.161 of 1994 is directed the ex parte judgment and decree dated 5-1-1994 passed in suit No.71 of 1992 Surendra Singh Pahwa v. Chandra Kumar, First Appeal Form Order No.1014 of 1994 is directed against the order rejecting application under Order 9, Rule 13, C.P.C. for setting aside the ex parte decree which is the subject matter of challenge in the first Appeal.

(2.) The suit giving rise to these appeals was filed by the plaintiff respondent No.1, Surendra Singh Pahwa against the respondents Nos.2 to 4 impleading the appellant as defendant No.4 for specific performance of a contract for sale dated 23-3-1976 between Ram Kumar, the father of the defendant Nos.1 to 3 and Deshraj Singh Pahwa, the father of the plaintiff for sale consideration of Rupees 1,70,000/- as well as for perpetual induction restraining the defendant appellant from auctioning the suit property in connection with the recovery of certain income-tax dues outstanding against Ram Kumar. It was alleged in the plaint that a sum of Rs. 20,000.00 was paid in advance as earnest money and further that the plaintiff was always ready and willing to perform his part of contract, but despite notices the defendants Nos.1 to 3 did not turn up to execute the sale deed in pursuance of the contract of sale and hence the necessity of suit.

(3.) Despite service of summons on them, the defendant respondent Nos.1 to 3 did not file any written statement and the suit proceeded ex parte against them. The defendant-appellant did file written statement but, it appeals, on the date fixed for issues, viz. 1-12-1993 none appeared on behalf of the defendant appellant and, therefore, 7-12-1993 was fixed for ex parte evidence. The plaintiff respondent, however, filed affidavit in support of his case on 2-12-1993 i.e. before the date fixed for ex parte evidence and upon hearing the counsel for the plaintiff on 7-12- 1993, the trial court fixed 13-12-1993 for judgment, but the judgment was not delivered on the date fixed and while the matter was pending judgment the defendant appellant moved an application on 17-12-1993 for setting aside the order dated 1-12-1993 to proceed ex parte against it. The said application was rejected by the trial court vide order dated 18-12-1993 on the ground that the arguments in the case already been heard and the judgment reserved and, therefore, the application was not maintainable. Ultimately the judgment was delivered and suit decreed ex parte on 5-1-1994 which is the subject matter of challenge in First Appeal No.161 of 1994.