ANTARYAMI Vs. KHALIL AHMAD SAGAR

JUDGEMENT

(1.) (Oral)

(2.) THIS is revision petition by Antaryami Dhir one of the legal representatives of original defendant Vishwa Mittar Dhir. Khalil Ahmed Sagar plaintiff-respondent no. 1 filed suit against Vishwa Mittar Dhir who died during the pendency of the suit and thereupon his widow Santosh Dhir moved application for being impleaded as his legal representative on the basis of Will. However, while the said application was pending consideration in the trial court, counsel for the parties by making statement on 18.12.1989 got the suit stayed till final decision of other litigation pending in between the parties. After the said litigation was finally decided, respondent no. 1 moved application for revival of this suit. Thereupon original suit file was summoned. Then trial court on 6.1.1994 ordered issuance of notice for 18.2.1994. Opposite counsel was served for the said date but did not appear. Notice was ordered to be issued to defendants for 12.5.1994. On 12.5.1994 defendants were not served and summons were received unserved with the report that address is incorrect and therefore, notice was ordered to be issued for 15.9.1994 on filing of correct address, process fee and registered cover. However, in the meanwhile plaintiff moved two applications, one for impleadment of 5 legal heirs of the defendant along with amendment of plaint and other for interim injunction. Vide order dated 17.8.1994 notice was issued to all the five legal heirs for 15.9.1994. The legal heirs were not served for 15.9.1994 and were ordered to be summoned for 8.11.1994. However, file was taken up on 16.9.1994 on application moved by the plaintiff for substituted service and accordingly, legal heirs of the defendant were served by substituted service for 8.11.1994 by publication in the Newspaper 'Daily Chardikala Patiala' and since they did not appear on 18.11.1994 and the next date i.e. 22.11.1994, they were proceeded ex parte. Ultimately suit was decreed vide ex parte judgment and decree dated 15.6.1995. Petitioner herein moved application dated 17.7.1995 on 18.7.1995 for setting aside order dated 8.11.1994 and ex parte judgment and decree dated 15.6.1995 alleging that he was not served. He learnt of the ex parte decree on 3.7.1995 when some Property Dealers told him about it in the Estate Office, Chandigarh. The application was resisted by applicant-respondent no.1 by raising various pleas. Learned Civil Judge (Senior Division), Chandigarh vide order dated 27.3.1999 dismissed the petitioner's application for setting aside order dated 8.11.1994 and ex parte judgment and decree dated 15.6.1995. Appeal preferred against the said order of the trial court by the petitioner has been dismissed by learned Additional District Judge, Chandigarh vide judgment dated 27.10.2007. Feeling aggrieved, the instant revision has been filed. I have heard learned counsel for the parties and perused the case file and records of the courts below including records of the civil suit. Learned counsel for the petitioner contended that the petitioner was not residing in House No. 1705 Sector 22-B, Chandigarh at the relevant time when notice of the suit was sent to him at the said address for 15.9.1994 and thus, the petitioner was not properly served and service by publication in Newspaper which does not have circulation at Chandigarh was not enough service. It was contended that the petitioner at the relevant time was residing in House No. 3130 Sector 22-D, Chandigarh where no summons was sent to him. I have considered the aforesaid contentions but find no merit therein. The entire conduct of the petitioner is malafide and untenable. Ex parte judgment and decree were passed on 15.6.1995 i.e. last working day before the summer vacation. The petitioner prepared his application on 17.7.1995, the first working day after summer vacation. It is, thus, manifest that the petitioner throughout had knowledge of the proceedings of the suit and was keeping watch on the proceedings and moved the application immediately after the ex parte judgment and decree were passed. It is, thus, apparent that the petitioner had been duly served in the suit and he intentionally avoided appearance in the court and with malafide intention moved the application for setting aside ex parte judgment and decree immediately after summer vacations. It may be added that summons in the suit were sent to the petitioner for 15.9.1994 at House No. 1705 Sector 22-B, Chandigarh. The petitioner is resident of the said address as mentioned in the memo of parties even in the instant revision petition. There is no evidence on record that in September, 1994 when the summons were issued to the petitioner, he was residing in House No. 3130 Sector 22-D, Chandigarh as alleged by him. The petitioner also alleged that 2/3 Property Dealers had told him about ex parte decree. However, no such Property Dealer has been examined as witness by the petitioner to support his said contention. There is concurrent finding by both the courts below after appreciation of evidence which is perfectly justified and supported by cogent reasons. Scope for interference in revisional jurisdiction is very limited. In the instant case, however, the only conclusion that could be arrived at on the basis of material on record is the one that has been arrived at by both the courts below. The whole conduct of the petitioner is malafide and just to delay the fruits of the decree passed in favour of plaintiff-respondent no. 1 by taking undue benefit of the process and procedure of the courts. There is no illegality in the impugned judgments of the courts below. The revision petition is completely meritless and is accordingly dismissed.