C.R.No. 2186 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANAAT

CHANDIGARH

C.R.No. 2186 of 2007

Date of decision: 12-3-2012

Jagdeep Kaur ……… Petitioner Vs

Manohar Singh ………Respondent CORAM:- HON’BLE MR. JUSTICE L.N.MITTAL, J.

Present: Mr. Amarjit Markan Advocate with

Mr. Anshuman Chopra, Advocate, for the petitioner

Mr. Arihant Jain, Advocate, for the respondent

L.N.MITTAL, J.(Oral)

Plaintiff Jagdeep Kaur has filed this revision petition under Article 227 of the Constitution of India assailing judgment dated 16.3.2007 (Annexure P-1) passed by learned Additional District Judge, Sangrur and order dated 5.4.2007 (Annexure P-1/A) passed by learned Civil Judge (Junior Division), Malerkotla.

Petitioner-plaintiff Jagdeep Kaur filed suit against Manohar Singh defendant-respondent for possession of the suit property by specific performance of the agreement to sell. In the said suit, defendant on notice appeared through counsel on 10.7.2001 and on request of counsel for the defendant-respondent, the case was adjourned to various dates i.e. 19.7.2001, 13.8.2001, 20.9.2001 and 19.10.2001 for filing written statement. Last adjournment for 19.10.2001 was subject to payment of Rs.100/- as costs and last opportunity was granted. On 19.10.2001, counsel C.R.No. 2186 of 2007 2 for the defendant pleaded ‘no instructions’ and costs imposed was also not paid despite demand. Accordingly, defence of the defendant was struck off. Ultimately the suit was decreed exparte vide judgment and decree dated 19.2.2003 (Annexure P-5).

Defendant moved application dated 27.8.2004 (Annexure P-2) for setting aside exparte judgment and decree dated 19.2.2003 alleging that after counsel for the defendant pleaded ‘no instructions’ on 19.10.2001, court notice should have been issued to the defendant but was not issued and therefore, exparte judgment and decree are liable to be set aside. Plaintiff by filing reply Annexure P-3 resisted the application moved by the defendant.

Learned Civil Judge (Junior Division), Malerkotla vide order dated 16.2.2006 (Annexure P-4) dismissed the defendant’s application Annexure P-2. However, first appeal preferred by defendant against the said order has been allowed by learned Additional District Judge vide impugned judgment dated 16.3.2007 Annexure P-1 which is under challenge in this Revision Petition filed under Article 227 of the Constitution of India. Vide judgment Annexure P-1, the lower Appellate Court directed the defendant to pay costs amount of Rs.10,000/- in the shape of bank draft and also to file written statement on appearance in the Trial Court on 5.4.2007 but the Trial Court vide order dated 5.4.2007, granted another opportunity to the defendant to file written statement on 1.5.2007. The said order Annexure P-1/A of the Trial Court is also under challenge in this revision petition.

I have heard the learned counsel for the parties and perused the C.R.No. 2186 of 2007 3 record.

Learned counsel for the petitioner relying on Division Bench judgment of this Court in Suresh Kumar Vs. Smt. Daryai and others 1996 (2) Civil Court Cases 0646 and three Single Bench judgments of this Court in Kulwant Kaur Versus Shisha Singh 2010(2) Recent Civil Reports (Civil) 123, Lachman Dass Vs. Food Corporation of India 2007(3) Recent Civil Reports (Civil) 340 and Bhairo Parshad Versus Karam Chand 2000(4) Recent Civil Reports (Civil) 519 and judgment of Andhra Pradesh High Court in M.Sidda Reddy & Ors. Vs. Lakshmamma & Another 2003(2) Civil Court Cases 0270 contended that after the defendant put in appearance through counsel who later on pleaded ‘no instructions’, no fresh notice was required to be issued to the defendant and there was no ground to set aside the exparte judgment and decree. It was also contended that there was no sufficient ground for condoning long delay of more than 1 ½ years in filing application Annexure P-2 on simple oral prayer of counsel for the defendant before the Lower Appellate Court.

On the other hand, learned counsel for defendant-respondent relying on the judgments of this Court in Partap Singh Versus State of Haryana and another 1979 P.L.J. 48 and Mehar Singh Vs. Dhrender Singh and others 1992 Civil Court Cases 426(P&H) and also judgment of Bombay High Court namely Anusayabai & others Vs. Union of India & another 1992 Civil Court Cases 413(Bombay) contended that delay can be condoned on oral prayer. Learned counsel for respondent further contended that if counsel pleads ‘no instructions’, then notice is required to be given to the party concerned. Reliance in support of this contention has been placed C.R.No. 2186 of 2007 4 on various judgments i.e. Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another AIR 1993 S.C. 1182,Sushila Narahari & Others Vs. Nandakumar & another 1996(2) Apex Court Journal 171(SC), Malkiat Singh & another Vs. Joginder Singh & Others 1998(2) Civil Court Cases 83(SC), Harjinder Singh Vs. Kirpal Singh 2000 (2) Civil Court Cases 366(P&H), Jangir Singh Vs. M/s Prem Motors 2000 (3) Recent Civil Reports(Civil)525, Balwinder Singh Vs. Tarsem Lal 2001 (1) Civil Courts Cases 143(P&H),Usha Rani Vs. Prem Singh 2005(2) Civil Court Cases 492(P&H), Baljit Singh Vs. Maya Ram and others 2006(4) Recent Civil Reports (Civil) 415, Ram Niwas Vs. Smt. Gita Devi 2009(1) Recent Civil Reports (Civil) 175 and M/s AA Enterprises Vs. Er. J.S.Sekhon 2009(3) Recent Civil Reports (Civil)144. It was also contended that in exercise of revisional powers under Article 227 of Constitution of India, impugned judgment of the learned Appellate Court should not be interfered with and reversed. Reliance has been placed on judgments in the cases K. Ganesan Vs. Sakunthala & Others 2001(2) Apex Court Journal 396 (S.C.), Pavan Sachdeva & Another Vs. S.M.S.Pharmaceuticals Ltd. & Another 2008(10) SCC 803, Renuka Das Vs. Maya Ganguly & Another 2009(4) Recent Civil Reports (Civil)271 and Ashok Kumar Vs. Kashmir Singh (Civil Revision No. 6086 of 2010 decided by this Court on 21.9.2010). It was also contended that pursuant to the impugned judgment of the lower Appellate Court, the Trial Court has proceeded with the suit and pleadings were completed and issues were framed and thereafter proceedings before the Trial Court were stayed by interim order of this Court. I have carefully considered the rival contentions of learned C.R.No. 2186 of 2007 5 counsel for the parties.

In view of Division Bench judgment of this court in the case of Suresh Kumar (supra) and also Single Bench Judgments of this Court in the cases of Kulwant Kaur (supra), Lachman Dass (supra), Bhairo Parshad (supra) and judgment of Andhra Pradesh in the case of M.Sidda Reddy (supra), no further notice was required to be issued to the defendant when his counsel, after putting in appearance on various dates of hearing, pleaded ‘no instructions’. There is no provision in the Code of Civil Procedure for issuance of any such notice. On the contrary, any such procedure would give handle to the unscrupulous defendant to delay the disposal of the suit by putting in appearance through counsel initially and then after seeking adjournments, asking the counsel to plead ‘no instructions’ and then insisting on fresh notice. Once the defendant was served and put in appearance through counsel, thereafter it was duty of the defendant to continue to defend the suit. It was neither duty of the plaintiff nor of the Court to have issued notice again to the defendant when his counsel pleaded ‘no instructions’ after seeking many adjournments for filing written statement. Plaintiff cannot be asked to bear the expenses of such a fresh notice. Judgment of Hon’ble Supreme Court in the case of Tahil Ram (supra) and some other judgments were also taken into consideration by the Division Bench of this Court in Suresh Kumar (supra). In the instant case, it was not even the plea of the defendant that his counsel pleaded ‘no instructions’ without informing him. For this added reason also, in the instant case, there is no ground, whatsoever, for setting aside the exparte judgment and decree. It is worth mentioning that the defendant in his C.R.No. 2186 of 2007 6 application Annexure P-2 even did not plead as to how and when he learnt of exparte judgment and decree dated 19.2.2003 after 1 ½ years when he moved application Annexure P-2 for setting aside the same. For the reasons aforesaid, it is manifest that there was no ground whatsoever for setting aside exparte judgment and decree and therefore, impugned judgment Annexure P-1 of the lower Appellate Court is patently perverse and illegal and suffers from jurisdictional error because the lower Appellate Court exercised jurisdiction which did not vest in it. Consequently the said judgment requires to be set aside by this Court in exercise of revisional jurisdiction. The judgments cited by learned counsel for the respondent that this Court should not interfere with the judgment of the lower Appellate Court are not applicable to the instant case because in this case, the impugned judgment Annexure P-1 of the lower Appellate Court is patently perverse and illegal and suffers from jurisdictional error. As regards condonation of long delay of 1 ½ years in filing application Annexure P-2, even if it be assumed that such delay could be condoned on oral prayer without there being written application, still there has to be sufficient ground for condoning the delay. In the instant case, there was no ground whatsoever much less sufficient ground to condone the aforesaid long delay. Thus the learned Appellate Court by condoning the said long delay, without there being any ground whatsoever, acted with illegality and committed grave jurisdictional error. For this added reason also, the impugned judgment Annexure P-1 of the lower Appellate Court has to be reversed and set aside.

The fact that some further proceedings have taken place in Trial C.R.No. 2186 of 2007 7 Court pursuant to judgment Annexure P-1 of the lower Appellate Court does not make any difference. Perverse and illegal judgment of the lower Appellate Court has to be set aside by this Court in revisional jurisdiction. The suit has not yet been decided.

For the reasons aforesaid, instant revision petition is allowed. Impugned judgment dated 16.3.2007 Annexure P-1 passed by the learned lower Appellate Court is set aside. Order Annexure P-4 dated 16.2.2006 passed by the Trial Court is restored. Application (Annexure P-2) of the defendant-respondent for setting aside exparte judgment and decree dated 19.2.2003 is dismissed. Instant revision against order dated 5.4.2007 Annexure P-1/A of the Trial Court is disposed as infructuous. (L.N.MITTAL)

JUDGE

March 12 , 2012

RSK