RAM NARAIN Vs. BIRBAL ALIAS BALBIR

JUDGEMENT

(1.) Brief facts giving rise to this appeal may first be enumerated.

(2.) Plaintiff appellant claims himself to be the owner of house in dispute. He is stated to have given this house to his sister who vacated the same but immediately thereafter the same was occupied by her son Birbal son of the sister of the plaintiff namely, Birbal filed a suit for declaration and permanent injunction against the plaintiff appellant that he had become owner of the house in question by way of adverse possession. The said suit entitled Birbal Vs. Ram Narain, was dismissed vide judgment and decree passed in that behalf on 12.2.1980. The appeal carried against the said judgment was also dismissed by Additional District Judge, Narnaul on 8.2.1983. It is thereafter that the plaintiff appellant filed the present suit for possession with respect to the said house and the same was decreed on 6.5.1988. by Sub Judge 1st Class, Mahendergarh Birbal, aforesaid carried an appeal against the judgment and decree rendered in favour of plaintiff appellant which was decided ex-parte in his favour, thus setting-aside the judgment and decree of the trial Court of appellant. An application was later given by the appellant for setting aside the said ex-parte decree and judgment which vide impugned orders have been dismissed. The positive case of the plaintiff was that it was only on 24.11.1988 that he came to know that Birbal had filed an appeal against the judgment of the trial Court and had obtained an exparte judgment in his favour. On coming to know that such a decree has been obtained he contacted his counsel and moved an application for setting aside the exparte judgement in his favour. On coming to know that such a decree has been obtained he contacted his counsel and moved an application for setting aside the exparte judgment and decree and prayed for that the appeal be reheard on merits. It was averred by him in his application that no service had been effected on him and process sever in collusion with Birbal and others had made a false report. He further averred in the said application that there was no reason for him so as not to defend the appeal when he was contesting the matter for the last more than a decade. This application was contested and as referred to above, was dismissed by Additional District Judge. I have heard the learned counsel for parties and am of the considered view that this appeal deserves to succeed obtaining possession of the house in dispute is in itself to conclude that had no reason whatsoever so as not to defend the appeal file against him after he came to know the pendency of such appeal If this fact would have been kept into consideration by the A.D.J., the result would have been entirely different. It is in keeping in mind the normal human conduct that evidence had to be appreciated by the Courts. In the present case Additional District Judge only relied upon the reports of the Process-Server and his evidence had to be appreciated by the Courts which in the nature of circumstances could not possibly be in favour of the appellant. The reading of the impugned order would not reveal if the attesting witnesses who are said to have evidenced report of refusal and the actual refusal of the appellant were examined in this case. The reason is not too far to seek inasmuch as in one of the reports of refusal one of the attesting witnesses was none other that the son of Birbal himself. Form the reports of the Process Server and from his evidence it could not be concluded that the appellant had deliberated refused to receive the summons. It is particularly so when allegations of mixing up of Process-Server with other side were made by the Appellant. Be that as it may, the fact that the Additional District Judge did not consider the probabilities of the case and foisted knowledge upon the appellant with regard to pendency of the appeal when summons were said to have been sent and refused by him would in itself be enough to set-aside the impugned order. Even otherwise, in a case of this kind when the appellant was only seeking hearing on merit the matter ought to have been disposed of on merit and at the most costs could have been imposed upon him, Procedural laws, in any case can not thwart the cause of justice. For the reasons aforesaid this appeal is allowed. The application given by appellant for hearing this case on merits and setting-aside the ex-parte proceedings and decree is allowed. In consequence of allowing the application, the ex-parte proceedings initiated against the appellant as also the exparte decree passed against him are set aside. The case is remitted to District Judge, who would decide the appeals filed by Birbal and others on merits.

(3.) The appellant would pay a cost of Rs. 1,000/- for approaching the Court late by praying for setting aside ex parte proceedings and decree against him. It is only on payment of the aforesaid costs that the appeal shall be heard on merits. Parties through their counsel have been directed to appear before District Judge, Narnaul on 17.7.1991. The parties shall bear their own costs in this appeal.