Full Judgment
CR No.3824 of 2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3824 of 2013 Date of Decision:
5. 2.2014 M/s S.M.Buildcon Pvt. Ltd. ......Petitioner Versus Vinod Kumar ......Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Sanjay Vij, Advocate for the petitioner. Mr.Sanjay Verma, Advocate for the respondent. MEHINDER SINGH SULLAR, J.
(Oral) Concisely, the facts and material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, are that initially, respondent-plaintiff Vinod Kumar son of Mange Ram (for brevity “the plaintiff”.), has instituted the civil suit for a decree of permanent injunction, restraining the petitioner- defendant M/s S.M.Buildcon Pvt. Ltd. (for short “the defendant-company”.), from alienating the property in dispute in any manner.
2. The trial Court ordered the ex parte proceedings against the defendant-company, by means of order dated 30.7.2007. The application (Annexure P2) filed by it for setting aside the ex parte proceedings under Order 9 Rule 7 read with Section 151 CPC, was dismissed as well by the trial Court, by way of impugned order dated 8.1.2013 (Annexure P1). Arvind Kumar Sharma 2014.02.10 16:11 I attest to the accuracy and integrity of this document Chandigarh CR No.3824 of 2013 2 3. Aggrieved thereby, the petitioner-defendant-company has preferred the present petition, invoking the jurisdiction of this Court under Article 227 of the Constitution of India.
4. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this regard.
5. As is evident from the record that the plaintiff has filed the suit for a decree of permanent injunction against the defendant-company in the manner depicted here-in-above. The defendant-company was stated to have been served, Mr.Deepak Goyal, Advocate appeared (only filed memo of appearance (not power of attorney/vakalatnama)) on its behalf on 20.9.2006. Consequently, the case was adjourned to 9.11.2006 for filing written statement & reply to stay application. Thereafter, neither Mr.Deepak Goyal, Advocate filed the written statement & reply to the stay application nor appeared on behalf of defendant-company and ultimately the trial Court ordered the ex parte proceedings against it, by virtue of order dated 30.7.2007. The application (Annexure P2) filed by the defendant-company under Order 9 Rule 7 CPC was dismissed as well by the trial Court, by means of impugned order (Annexure P1).
6. At the very outset, the learned counsel has contended with some amount of vehemence that neither the defendant-company was duly served nor it was aware of the pendency of the suit, nor engaged Mr.Deepak Goyal,Advocate to represent it in the case. The plaintiff was claimed to have manipulated the ex parte proceedings with a mala fide intention. As soon as, the defendant-company came to know, he moved the application for setting Arvind Kumar Sharma 2014.02.10 16:11 I attest to the accuracy and integrity of this document Chandigarh CR No.3824 of 2013 3 aside the ex parte order. The same was dismissed by the trial Court, vide impugned order (Annexure P1). The main ground, which appears to have been weighed with the trial Court to negate the plea of defendant-company, was that since Mr.Deepak Goyal, Advocate was appearing on its behalf and if ex parte proceedings are set aside, then, it would get an opportunity to file written statement, which would in violation of Order 8 Rule 1 CPC.
7. Here, to me, the trial Court slipped into the deep legal error in this respect. The period as contemplated under Order 8 Rule 1 CPC would start from the date when the defendant-company will appear in the Court after setting aside the ex parte proceedings. The explanation put forth by the defendant-company that it was neither served through any authorized agent nor engaged Mr.Deepak Goyal, Advocate, appears to be genuine. It is not a matter of dispute that even Mr.Deepak Goyal, Advocate did not file any power of attorney on record to show that he was ever engaged by the defendant-company to represent it in the trial Court. The plaintiff appears to have manipulated the ex parte proceedings by fictitiously producing Mr.Deepak Goyel, Advocate on behalf of defendant-company with a mala fide intention.
8. Moreover, such rules of procedure are handmaid of justice. If Order 9 Rule 7 CPC is interpreted in the same manner, as has been done by the trial Court, in that eventuality, the Court cannot reach the destination of justice without the aid of procedure which is known as primarily handmaid of justice in civil adjudication.
9. Above-all, it is now well-settled principle of law that, the parties should be permitted to defend their valuable rights in the property and ex parte proceedings cannot and indeed should not be ordered, unless Arvind Kumar Sharma 2014.02.10 16:11 I attest to the accuracy and integrity of this document Chandigarh CR No.3824 of 2013 4 and until the erring party is so negligent and is guilty of grave misconduct to mala fide delay the matter. Otherwise, it may give rise to multiplicity of the proceedings.
10. Meaning thereby, the valuable rights of the parties are involved and the suit requires to be decided on merits after receiving the evidence of the parties. Therefore, taking into consideration the nature of litigation between the parties, the trial Court ought to have set aside the ex parte proceedings, specially when, no prejudice was going to be caused to the plaintiff and he could well be compensated with adequate costs in this relevant connection.
11. In the light of aforesaid reasons, the instant revision petition is accepted. The ex parte order dated 30.7.2007 and impugned order dated 8.1.2013 (Annexure P1) are hereby set aside. Consequently, the trial Court is directed to permit the petitioner-defendant company to file its written statement and to contest the main suit on merits. However, this would be subject to payment of ` 2000/- as compensatory costs, to be paid by the defendant-company to the plaintiff. Sd/- (Mehinder Singh Sullar) 5.2.2014 Judge AS Arvind Kumar Sharma 2014.02.10 16:11 I attest to the accuracy and integrity of this document Chandigarh