SANTOSH Vs. VIJAY PAL

JUDGEMENT

(1.) The petitioners/plaintiffs Santosh and Sushma alias Rekha have filed two Civil Revisions under Article 227 of the Constitution of India for setting aside the common judgment dtd. 30/8/2017 (Annexure P-12) passed by the Court of learned Additional District Judge, Gurugram in Civil Appeal No. 66 of 11/5/2015/10/8/2015 (M/s S.J. Towers and Developers Private Limited and others versus Smt. Santosh and another) and in Civil Appeal No. 86 of 15/5/2015/6/7/2017 (Vijay Pal versus Smt. Santosh and others) and to restore the common order dtd. 7/4/2015 (Annexure P-9) passed by the Court of learned Civil Judge (Junior Division), Gurgaon, whereby the application filed under Order 9 Rule 13 read with Sec. 151 C.P.C. for setting aside exparte judgment and decree dtd. 7/3/2006 filed by applicant/defendant No. 8 Vijay Pal and application under Order 9 Rule 13 read with Sec. 151 C.P.C. filed by applicants/defendants No. 5 to 7 and 9 were rightly dismissed. Both these civil revisions have arisen out of the same judgment dtd. 30/8/2017 (Annexure P-12) and order dtd. 7/4/2015 (Annexure P-9), therefore, the civil revisions are taken up together for disposal.

(2.) The learned Senior Counsel for the petitioners argued that the learned Additional District Judge, Gurgaon has erroneously allowed the appeal of defendants No. 5 to 7 and 9 on the one hand and respondent/defendant No. 8 on the other hand. In-fact, the facts and circumstances of the case were rightly considered by learned Civil Judge (Junior Division), Gurgaon while dismissing the application under Order 9 Rule 13 C.P.C. by passing well reasoned order dtd. 7/4/2015, Annexure P-9. The petitioners/plaintiffs had filed Civil Suit No. 141 dtd. 10/3/1999/7/9/1998 seeking declaration that they are absolute owners in possession of the suit land and challenged mutation No. 784 sanctioned on 24/12/1994 and subsequent sale deeds dtd. 19/12/1994 and 20/4/1995 and the mutations sanctioned on that basis as illegal, null and void, nonest, void ab initio and the same did not confer any right, title or interest on the defendants along with the relief of permanent injunction restraining the defendants from creating any charge over the property by alienating or transferring the same or changing the nature of property. The copy of said plaint dtd. 7/9/1998 is Annexure P-1. The defendants No. 1 to 4 i.e. respondents No. 6 to 9 in CR-7096-2017 appeared through their counsel Sh. Anil Grover, Advocate and ultimately the suit was decided vide judgment and decree dtd. 7/3/2006. The copy of judgment and decree dtd. 7/3/2006 is Annexure P-2. Sh. Anil Grover, Advocate filed application dtd. 7/12/2000 seeking one opportunity to file written statement on behalf of defendants No. 5 to 7 and 9. The copy of said application is Annexure P-4. The copy of Memo of Appearance as well as vakalatnama submitted by Sh. Anil Grover, Advocate as well as Sh. Anil Grover, Advocate gave vakalatnama in favour of Sh. G.L. Malik, Advocate, which are Annexure P-5. The learned counsel for defendants No. 5 to 7 and 9 were granted several opportunities to file their written statement. The cost was also imposed and ultimately their defence was struck off vide order dtd. 10/11/2001. The defendant No. 8 Vijay Pal had purchased l/8th share in the suit property who remained unserved by way of ordinary process as well as through registered post. Thereafter, application dtd. 26/5/2004 was filed to effect his service by way of substitute means, which is Annexure P-6. As per order dtd. 28/5/2004, the defendant No. 8 was ordered to be served through publication in the newspaper "Bharat Desh Hamara" for 20/9/2004 on filing of publication charges and process fee. The publication was duly effected and thereafter, vide order dtd. 22/1/2005, the defendant No. 8 Vijay Pal was also proceeded against exparte. The zimni orders for the aforesaid period are placed on record as Annexure P-3. The suit filed by the plaintiffs was ultimately decreed vide judgment and decree dtd. 7/3/2006, Annexure P-2. Thereafter, the petitioners through their lawful General Power of Attorney Holder Rajesh Monga sold the property in favour of Priya Monga vide registered sale deed dtd. 6/7/2006. On 8/1/2007, the defendants No. 5 to 7 and 9 filed application under Order 9 Rule 13 C.P.C. read with Sec. 151 C.P.C. for setting aside the aforesaid judgment and decree dtd. 7/3/2006 (Annexure P-2). The copy of application dtd. 8/1/2007 is Annexure P-7. The reply filed by the petitioners is Annexure P-8. Vijay Pal, defendant No. 8 filed separate application for setting aside the judgment and decree dtd. 7/3/2006 (Annexure P-2). The true copy of the application dtd. 23/9/2009 is Annexure P-10. The reply dtd. 9/10/2009 is Annexure P-11. Both the applications were disposed of by passing common order dtd. 7/4/2015, Annexure P-9. Thereafter, two separate appeals were filed against the aforesaid order dtd. 7/4/2015, Annexure P-9 i.e. one Civil Appeal No. 66 dtd. 11/5/2015/10/8/2015 filed at the instance of defendants No. 5 to 7 and 9 and another Civil Appeal No. 86 dtd. 15/5/2015/6/7/2017 filed at the instance of defendant No. 8 Vijay Pal. These appeals were disposed of by passing impugned judgment dtd. 30/8/2017, which is Annexure P-12. The appeals were wrongly accepted by restoring the suit of the petitioners/plaintiffs to its original number with the direction to the defendants to file their respective written statements. Now, two separate civil revisions have been filed against the impugned judgment dtd. 30/8/2017, Annexure P-12.

(3.) The learned Senior Counsel for the petitioners pointed out that Vijay Pal - respondent/defendant No. 8 wrongly claimed that he was not aware of the impugned judgment and decree dtd. 7/3/2006, Annexure P-2 and he came to know about this fact when he received notice in the application filed by defendants No. 5 to 7 and 9. It is pointed out that the address mentioned in the plaint as well as in the application Annexure P-7 is the same, therefore, it cannot be said that he was not served on the correct address. Despite repeated notices, he did not appear and ultimately he was ordered to be served through publication. The conduct of defendant No. 8 clearly shows that he was having full knowledge about the proceedings of the suit Annexure P-1 and he did not choose to appear deliberately. The learned Additional District Judge, Gurgaon has wrongly concluded that the newspaper "Bharat Desh Hamara" had no circulation in the area and it is further wrongly concluded that there was a long gap in the order issuing notice by way of publication and the date when the notice was actually published in the newspaper for 22/1/2005. The justification given by the learned Additional District Judge, Gurgaon regarding passing of impugned judgment qua respondent No. 8 Vijay Pal is not on sound footing. The dates were given as the publication fee was not deposited. Thereafter, the publication fee was deposited and notice was issued through publication for 22/1/2005. The reasoning given by learned Civil Judge (Junior Division), Gurgaon while passing order dtd. 7/4/2015, Annexure P-9 qua respondent No. 8 Vijay Pal is fully justified and the same does not require any interference.