NIRMAL SINGH Vs. NANAK CHAND

JUDGEMENT

(1.) The civil revision is at the instance of the defendant in suit who filed an application to set aside the ex parte decree as on 19.01.2000. The application had been filed in August 2000 on a plea that he had not been served and that he came to know about the ex parte decree only just prior to the filing of the petition. The contest in defence by the plaintiff who secured decree was that the suit had been filed on 11.03.1999. The Court had issued summons on 16.03.1999. He was purported to have been served on 17.03.1999 for hearing on 18.03.1999. The summons had been proved to have been effected although the defendant contended that the thumb impression found in the same was not his. As a matter of fact, both Courts have held that he had been served and the petition filed for setting aside the ex parte decree more than 30 days from the time when the decree was passed on 19.01.2000, was barred by limitation. The suit is for the relief of declaration and injunction, both preventive and mandatory that contained a reference to the closure of the door and window already placed and opening inwards the plaintiffs property. The mandatory relief will grossly affect the rights of party if adjudication were to be done otherwise than on merits. Normally, I would find no reason to interfere with the decision made by the Courts below on issue of knowledge of the decree and the issue of limitation of whether the application was filed in lime. However, I would make a deviation in this case, only by virtue of the fact that the manner in which the dates were posted for service does not evoke any confidence. If the suit had been filed on 11.03.1999, the Court could not have fixed the date of hearing even within one week on 18.03.1999. Not merely fixing a short date but even the summons issued on 16.03.1999 and service to be effected on 17.03.1999 for hearing date on 18.03.1999 was grossly inadequate for any suitor to make appropriate arrangement for entering a defence. It was perhaps thought necessary for the trial Court to fix short date in view of the fact that mandatory reliefs had been sought in the petition but even then I cannot allow for a haste which was shown by the trial Court in fixing the date of hearing without appropriate opportunity to even engage a counsel. If there was really a need for expediting the process, then it beats logic that the Court took another 9 months' period to pass ex parte decree. This itself betrays a lack of application of mind on the part of the Judge to fix unreasonably a short date for appearance before the Court and setting the defendant ex parte but taking 9 months to grant the decree.

(2.) Since the property relates to a right in respect of immovable property, 1 think interest of justice would be best served if an opportunity is given to the defendant to contest the case on merits, provided that the defendant pays a cost of Rs. 15,000/- to the plaintiff within 30 days from the date of receipt of copy of this order. If the amount is paid, the decree passed already shall stand set aside and the defendant shall file a statement within a further period of 30 days from when the first date of hearing is fixed by the Court. The Court shall not allow for any further time for filing statement and for the period that has expired all along must itself be taken as sufficient time for the defendant to be ready with the written statement. If the statement is filed and documents are made ready, the Court shall endeavour to dispose of the case as expeditiously as possible particularly in view of the fact that the suit was instituted as early as in 1999. If the amount is not paid as directed, the order already passed by the Court below still stand confirmed and no further opportunity will be available for the revision petitioner. The orders passed by the Courts below are modified to the above extent and the revision petition is disposed of accordingly.