BHUPINDER KAUR Vs. SUKHMINDER SINGH

JUDGEMENT

(1.) Petitioner-plaintiff is aggrieved of the impugned order, whereby the application of the respondent-defendants filed under Order 9, Rule 13 CPC for setting-aside of the ex-parte judgment and decree dated 14.8.2012 and ex-parte proceedings dated 26.7.2011, has been allowed.

(2.) Mr. N.S. Swaitch, learned counsel for the petitioner-plaintiff submits that the respondent-defendants herein were served in the aforementioned suit and filed an application under Order 7, Rule 11 CPC seeking dismissal of the suit and, thus, they were aware of the pendency of the suit. They were proceeded ex-parte on 26.7.2011. No explanation has come forth for not moving the application with promptitude, whereas same was filed on 7.11.2012 after three months of the passing of the ex parte judgment and decree. As per the cross-examination of the defendants, it has surfaced that they had been appearing in the Court on each and every date and thereafter stopped appearing. The application was hopelessly time barred. The limitation has to be seen from the date of passing of the judgment and decree and not from the date of acquiring the knowledge. In support of his contention, relies upon the judgments rendered by this Court in Gian Singh v. Rajesh Kumar, 2011(2) R.C.R. (Rent) 602 and Bal Krishan and Ors. v. Dulla Ram, 2014 (1) Civil Court Cases 18 (P&H) and, thus, prays for setting-aside of the impugned order.

(3.) Mr. Chetan Mittal, learned Senior Counsel assisted by Mr. Saurabh Goel, learned counsel appearing on behalf of respondent Nos.1 and 2-defendants submits that the counsel engaged, namely, Mr. Pardeep Kumar Nanchahal had given the respondents order (Annexure R-3) that the suit had been dismissed owing to the previous dismissal of the suit. The aforementioned order was believed, but later on Halqa Patwari was approached to ascertain the position in the revenue record and the factum of the ex-parte decree surfaced. In these circumstances, the application was moved. The Court below had, after all deliberations on the oral and documentary evidence, much less circumstances with retard to the act of omission of the counsel, set-aside the order. In support of his submissions, relies upon the ratio decidendi culled out by the Hon'ble Supreme Court in Bhagmal and others v. Kunwar Lal and others, (2010) 12 Supreme Court Cases 159 (Para 12). He submits that the ratio decidendi culled out in the aforementioned judgment is based upon identical facts and, thus, urges this Court for affirming the findings.