RAJ KUMAR Vs. SWARAN SINGH

JUDGEMENT

(1.) The instant civil revision is filed against the order dated 04.02.2013 passed by the learned Civil Judge (Jr. Division), R.S.Pura, whereby the ex parte decree passed by that Court on 27.02.2012 in the suit titled Raj Kumar vs Swaran Singh was set aside.

(2.) In this revision petition, it has been stated that in a suit for declaration and permanent prohibitory injunction titled Parshotam Dass (by his legal representative Raj Kumar) Vs. Swaran Singh, the defendant (herein respondent) proceeded against ex parte after he failed to appear in the case continuously for several dates of hearing and ultimately after recording ex parte evidence a decree was passed on 27.02.2012, declaring the alleged adoption of defendant No.1 by one Smt. Khetri Devi, the paternal aunt of the petitioner, to be null and void, and defendant was permanently restrained from selling alienating, interfering or transferring any movable or immovable property of the said Smt. Khetri Devi. It has further been stated that the husband of the one Smt. Khetri Devi, Sh. Ram Nath, was one of the members of the family along with Sh. Lekh Raj, Parshotam Dass and Kuldeep Raj (sons of sh. Lakmi Chand), whom land measuring 16 kanals 3 marlas in Khasra Nos.34, 35, 62 and 69 of village Kotli Gallabana was allotted , and all the four were entitled to the said land and the rights about the same, whether occupancy or otherwise, in equal shares. The said Sh. Ram Nath expired, leaving behind his widow Smt. Khetri, and she is said to have later, after the death of her husband, adopted one Sh. Swaran Singh as her son. Sh. Parshotam Dass, one of the members of the said family, filed a suit for declaration that the alleged adoption by the said Smt. Khetri Devi was null and void and also for permanent prohibitory injunction restraining the defendant from interfering, selling or transferring the said land or any part thereof. The defendant filed his written statement on 10.12.2010 and thereafter absented himself on several dates of hearing. The Court, being satisfied that there was no cause for the defendant not to appear in the case, proceeded ex parte against him on 20.09.2011. In the meantime, father of the petitioner, Sh. Parshotam Dass (Plaintiff), died on 01.03.2011, and the petitioner was brought on record as the legal representative of the deceased on 06.01.2012, of course upon his application in that behalf. The Court, after recording ex parte evidence, decreed the suit on 27.02.2012. Long thereafter, the defendant made an application for setting aside the ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure on 05.06.2012, obviously long after the expiry of the period of limitation; and along with prayer for condoning delay by means of a separate application was filed . The Munsiff R.S.Pura allowed both the applications, one for condoning delay and the other for setting aside the said ex parte decree by his order dated 04.02.2013. It is further contended that the ground on which the delay in filing the application for setting aside the ex parte decree is bought to be condoned is that Parshotam Dass plaintiff had come closer to the defendant and agreed to withdraw the case as compromised, but unfortunately died before the same could be withdrawn, and that he (defendant) had informed his counsel about the said agreement, and that the application of the petitioner herein for bringing him on record as legal representative of the deceased had been allowed without intimation to him either by the Court or by his counsel. The averments made in the said application are not only vague but also self contradictory. There is nothing in the application about when the said Parshotam Dass agreed with the defendant to compromise or withdraw the suit, and why the same could not be compromised or withdrawn before his death, nor about how he took it that he needed not to appear in the Court until the case was terminated in a compromise or withdrawal. It is a cock-and bull story that makes up for the cause to condone delay on the said ground. The counsel for the respondent herein had received the copy of the application to the petitioner for bringing him on record as legal representative of his deceased father, and it does not sound plausible that if he had been informed about what the deceased Parshotam Dass had allegedly agreed, he would not have informed the defendant of such application or continuance of the proceedings, or in other words, would have kept this information back from him. A party may or may not appear in the case personally; but he is not absolved of his responsibility to be diligent in the pursuit thereof. There can be no valid reason for the defendant not to appear in the case on an unfounded belief that the case might not proceed. There is no obligation in law either on the Court or the Counsel for the defendant to inform the latter of the grant of the application for brining on record the legal representatives of the deceased plaintiff. Thus, there is absolutely no cause made out in the application for condoning delay. It is further stated that the application for condoning delay does not disclose when and how the defendant came to know of the ex parte decree. At the time of arguments, when it was pointed out that there was nothing in the said application in that behalf, the defendant got the clue that he had missed out on that important aspect of the matter. The very fact that the defendant had offered no explanation at all of each day's delay after the passing of the said decree, and he had not come out clearly on when and how he acquired the knowledge of the decree if he had, not already known of the same, goes a long way to decimate the cause pleaded in the application for condoning delay as a farce. It is unfortunate and a matter of serious concern that after the defendant came to know from the said arguments that there was no substance in the application, and the same could not survive the deficiency of the cause as pointed out, he manipulated the interpolation in para 5 of the same. How this expression has got into this application is not forth coming and it cannot but be by manipulation of the defendant. It calls for a thorough probe when and how the aforesaid expression has found its way into the said application; it seems to be done by and at the instance of the defendant between 10 September 2012 and 6 February 2013. The aforesaid addition in the said application is not supported by any order of the Court and is not made in accordance with any procedure established by law; it has been made without taking the Court into confidence. A fraud has been thus played on the Court and also on the petitioner. In the circumstances, the defendant is not entitled to any indulgence of the Court and his application for condoning delay is liable to be dismissed. It is further contended that the defendant made an application, purportedly under Order 6 Rule 7 of the CPC for amendment of the earlier application for condoning delay on 09.01.2013. The petitioner has had no opportunity to file objection to the said application and was never ever privy to how it was disposed of. Even from the said application it appears that there was nothing about the said addition made in Para 5 of the application for condoning delay; neither any such amendment was sought nor allowed. The application for amendment is misconceived in that Order 6 Rule 17 of the CPC has no application in such a case, therefore, was not entitled to be considered at all and so are disentitled the averments made therein. It is further contended that the delay in filing the application for setting aside exparte decree is not explained at all, and no cause, much less sufficient, is shown for the absence of the defendant on several dates of hearing until the decree was passed. No explanation is tendered for each day's delay after the passing of the decree. The trial Court thus wrongly condoned the delay and took up the application for setting aside exparte decree for consideration. No evidence has been led by the defendant on his application for condoning delay. The application for setting aside exparte decree is not based on any valid ground..

(3.) This Court vide order dated 28.08.2017, admitted the petition and vide order dated 19.09.2017 learned counsel for the parties submitted that there is no need to file objections.