BALWINDER SINGH Vs. TARSEM LAL

JUDGEMENT

(1.) Vide order dated 24.2.1999 passed by the Additional Civil Judge (Sr. Division), Kharar, ex parte decree dated 21.3.1997 passed in favour of Balwinder Singh against Tarsem Lal in a suit for specific performance was set aside.

(2.) Facts: Balwinder Singh - plaintiff (petitioner herein) filed suit for possession through specific performance against Tarsem Lal-defendant (respondent herein) on the basis of agreement to sell dated 5.6.1993 for the purchase of house belonging to him for a sum of Rs. 1,03,000/-. As per Balwinder Singh, he had paid entire sale consideration to Tarsem Lal. Only a few instalments were to be paid to the Housing Board which he (Balwinder Singh) was always ready and willing to pay. Sh. Tara Chand Gupta, Advocate was the counsel for Tarsem Lal. After Tarsem Lal had engaged Shri T.C. Gupta as his counsel, he did not contact him being under the impression that once he had engaged an Advocate, he would himself conduct the entire case and would inform him about the further proceedings. Tarsem Lal fell ill and his wife also remained ill. He remained under mental tension. He could not contact Sh. T.C. Gupta, Advocate. Shri T.C. Gupta, Advocate had the impression as if he was not interested in contesting the suit for specific performance and he (Sh. T.C. Gupta, Advocate) accordingly made statement pleading no instructions in the case on his behalf. Eventually, ex parte decree was passed. He came to know about the passing of the ex parte decree when notice of the draft sale deed was received at his house. When notice of the draft sale deed was received at his house, he enquired into the matter and came to know that on 21.3.1997, ex parte decree had been passed against him. Thereupon, he moved an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree dated 21.3.1997 before the learned Additional Civil Judge (Sr. Division), Kharar in which he pleaded that his absence was not intentional but was occasioned because of the aforesaid circumstances.

(3.) Balwinder Singh contested this application urging that he (Tarsem Lal) came to the Court regularly in the beginning and was appearing in Court with his counsel. It was denied that he had fallen ill. If he had fallen ill how was he attending the Court regularly. He was negligent and absented from the Court. It was further alleged that ex-parte proceedings were ordered by the Court when Shri T.C. Gupta, Advocate had made statement pleading no instructions in the case.