SAHIB KAUR Vs. SUKHBIR SINGH

JUDGEMENT

(1.) This revision petition under Article 227 of the Constitution of India has been filed by the defendant No. 2-petitioner for setting aside the order dated 22.1.2004 passed by the learned Additional Civil Judge (Sr. Divn.) Safidon whereby her application for setting the ex parte order dated 1.5.2001 has been dismissed.

(2.) The plaintiff-respondent-Sukhbir Singh filed a suit for declaration to the effect that he is the absolute owner in possession of agricultural land measuring 97 kanals 5 marlas as detailed in the head note of his plaint situated at Village Anta, Tehsil Safidon, District Jind with all rights appurtenant thereto and that the alleged sale-deed dated 6.1.1972 said to have been executed by Randhir Singh-defendant No. 4 being the alleged attorney of the plaintiff in favour of Kuldeep Singh (defendant No. 1) and that the alleged judgment and decree dated 19.7.1993 passed by the Additional Senior Sub Judge, Safidon in civil suit No. 366 of 1993 titled Sahib Kaur v. Kuldeep Singh as also the mutation No. 81 dated 20.6.1972 and mutation No. 501 dated 30.6.2000 sanctioned on the basis of the alleged sale-deed and judgment and decree respectively are illegal, null and void and an act of fraud and misrepresentation without consideration and in no way binding upon the plaintiff. Besides, permanent injunction restraining the defendant Nos. 2 and 3 from interfering in the peaceful possession of the plaintiff or alienating the suit property in any manner as the defendants have no right, title or interest whatsoever in the suit property or in the alternative suit for possession if the defendants succeed in dispossessing the plaintiff from the suit property during the pendency of the suit was also prayed for. During the pendency of the suit, on 1.5.2001 (Annexure P-1) as no one had appeared on behalf of defendant Nos. 1 and 2, they were proceeded against ex parte. The case was adjourned to 28.5.2001 for filing the written statement and reply to the injunction application on behalf of Randhir Singh (defendant No. 4) who alone had appeared in person on 1.5.2001. Later on, the petitioner-Smt. Sahib Kaur who is defendant No. 2 in the suit, filed an application dated 20.8.2003 (Annexure P-2) for setting aside, the ex parte order dated 1.5.2001. It was stated by her that in fact she had never been served nor she ever refused to accept the service. Besides, the report of refusal on the summons was a planned idea of the plaintiff who in collusion with the process server got the false report made of refusal of service and the plaintiff himself became a witness to the report of refusal. In fact, no process server ever came to the petitioner for effecting the service of the summons of the Court. It is also stated that the plaintiff is a law graduate and he put up another counsel on behalf of the petitioner and on behalf of co-defendant No. 1-Kuldeep Singh. The said counsel, it is alleged, filed a memo of appearance on 8.1.2001 on behalf of defendant Nos. 1 and 2 and undertook to file Vakalatnama on their behalf later on. On the next date of hearing also i.e. on 23.1.2001 the said counsel again appeared and again undertook to produce Vakalatnama on their behalf. On the next date also, it is stated that the same process was repeated and ultimately on 1.5.2001 for the non-appearance of the counsel, the petitioner and co-defendant No. 1 were proceeded against ex parte. It is stated that all this in fact is a mystery (sic - mischief) played by the plaintiff upon the Court as well as the petitioner and co-defendant No. 1 to get an ex parte order. The petitioner and her co-defendant No. 1 it is stated never engaged the counsel who put in appearance for them nor was he known to them. Therefore, her absence during the pendency of the suit was not intentional. The application was supported by an affidavit.

(3.) The learned trial Court, after going through the record on the file, observed that the summons on defendant Nos. 1 and 2 were duly served and that is why report of refusal has been made on the summons. Besides, a counsel had furnished memo on their behalf on 8.1.2001 and contested on behalf of defendant Nos. 1 and 2 till 1.5.2001. It was further observed that as the application for setting aside the ex parte order has been moved about 2-1/2 years back so at this stage he did not consider it appropriate to set aside the ex parte order. Accordingly, the application was dismissed. The said order passed by the learned trial Court on 22.1.2004, as already noticed, is assailed in this petition.