KHUSDIL Vs. VIRENDER

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 30.05.2017 passed by the Additional Civil Judge (Sr.Division), Faridabad, dismissing an application under Order 9 Rule 13 CPC filed by the petitioner, who was defendant No.3 in the suit, seeking the setting aside the ex parte judgment and decree dated 03.09.2014 as well as the judgment and order dated 19.08.2019 passed by the Additional District Judge, Faridabad, dismissing appeal of the petitioner against the order dated 30.05.2017 with a further prayer to allow the application of the petitioner under Order 9 Rule 13 CPC.

(2.) Brief facts, in short, which has necessitated the filing of the present revision petition commence when the respondent-plaintiff instituted a suit for possession by way of a specific performance of agreement to sell against the defendants in the said suit alleging that Shri Ashok Kumar Sharma and Sumit Chanana, defendant Nos.1 and 2 in the said suit, had entered into an agreement to sell dated 10.07.2008 with the respondent- plaintiff for a total sale consideration of Rs.60.00 lacs and out of which, the respondent-plaintiff had paid earnest money of Rs.20.00 lacs. Thereafter, the above-mentioned owners sold the property to the present petitioner- Khushdil, who was defendant No.3 in the suit, vide sale-deed dated 19.03.2010. The present petitioner and defendant Nos.1 and 2 were proceeded ex parte and the suit was decreed vide judgment and an ex parte decree dated 03.09.2014 on the ground that notice issued to petitioner- defendant No.3 was received back with the report of refusal. After passing of the aforesaid decree, the respondent-plaintiff filed an execution application on 17.01.2015. A notice of the said application was issued on 04.03.2015 for 01.04.2015 and once again the same was issued for 23.04.2015. It is alleged that the said summons were received by mother of the present petitioner, but since she refused to accept the same once again, report of refusal was given. However, the petitioner-judgment-debtor appeared in the execution proceedings on 23.04.2015. Thereafter, the petitioner-judgment debtor filed an application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 03.09.2014 on 11.05.2015. However, the said application was dismissed vide order and judgment dated 30.05.2017. The petitioner-defendant No.3 accordingly filed appeal against the order dated 30.05.2017, which too was dismissed on 19.08.2019. Hence, the present revision is filed against the order and judgment dated 30.05.2017 as well as the order dated 19.08.2019.

(3.) While praying for setting aside the impugned orders, learned counsel for the petitioner-defendant No.3 submitted that the said orders are passed in total non-compliance of the mandatory provisions of Order 5 Rule 19 CPC. No affidavit of the Serving Officer has come forth on record qua the alleged service verification and nor is there any report of the service of the petitioner. The Process Server failed to observe the mandatory provisions of Order 5 Rules 17 & 19 of the CPC. The report is contradictory. On the one hand, it is stated that there is no independent person available and on the other hand one Pardeep has signed, who was not produced. No summons were sent by registered post at proper address with acknowledgement due. The Court has wrongly recorded that there was delay. The delay starts from the date of the knowledge and the petitioner came to know only after the summons were received by his mother and a copy of the execution petition was left with his mother. It was further contended that case of the petitioner is good on merits and, therefore, he should not be condemned unheard. As per the learned counsel for the petitioner, the property was purchased by his father, who is an Ex- Serviceman in the Indian Air Force, and who has invested his life-time savings in buying the said property so as to settle after his retirement. The owners of the house Ashok Kumar Sharma and his son Sumit Chanana have entered into full and final agreement in favour of their mother, namely, Shakuntala on 21.08.2009 and all documents like Possession Certification, Will etc. were executed in the favour of their mother. The said transaction was facilitated by Sumit Arora and R.K.Chawla, who have also witnessed the documents. Thereafter, mother of the petitioner executed the sale deed in favour of the petitioner. Copies of the general power of attorney as well as the sale deed have been placed on record of this revision petition. Father of the petitioner had paid Rs.15.00 lacs by way of two cheques besides the amount of Rs.22.00 lacs having been given in cash, which were drawn by their father from his account. On the other side, the agreement to sell with the respondent-plaintiff is dated 10.07.2008 for a consideration of Rs.60.00 lacs, out of which Rs.28.00 lacs was to be paid with the registration of the sale-deed.