Amar Singh Vs. Labh Singh

Amar Singh vs Labh Singh

Disposition Appeal dismissed Court Punjab and Haryana Decided Aug 06, 1992

~4 min read

https://sooperkanoon.com/case/628569

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/628569
Court: Punjab and Haryana High Court
Judge: A.L. Bahri, J.
Decided On: Aug 06, 1992
Case Number: First Appeal From Order No. 494 of 1991
Subject: Civil
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestra...

Key legal issue: Civil
Outcome / disposition: Appeal dismissed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13

Parties & Advocates

Appellant / Petitioner

Amar Singh

Advocate Sandeep Punchhi, Adv.

Respondent

Labh Singh

Advocate S.C. Chhabra, Adv.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
Reported In: (1992)102PLR544

Excerpt

.....contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of..........him. not only that, he failed to pay a sum of rs. 100/- only as costs which were imposed while allowing his application for setting aside the ex-parte decree passed by the appellate court but he did not produce relevant evidence in support of the issue framed in spite of the fact that opportunity was allowed on payment of rs. 50/- as costs. it was the last order vide which costs were imposed. although earlier on two occasions costs imposed were paid. the fact remains that sher chand hakeem who is alleged to have examined the defendant amar singh about his sickness for the relevant period, was not produced in spite of opportunities having been allowed. then it was the statement of amar singh alone which was to be taken into consideration and the lower appellate court rightly chose not to place implicit reliance thereon.5. even otherwise there was no justification for allowing one after another opportunity to amar singh defendant in the matter of payment of costs. as already stated above, on april 9, 1987 the application was allowed subject to payment of rs. 100/- as costs and the case was adjourned to may 7, 1987. on that day costs were not paid. automatically application for restoration stood dismissed. the order of dismissal of the application could have been formally passed on that very day for non-payment of the costs, if at all, it was necessary. although order dated may 7, 1987 did not show that another opportunity was allowed to amar singh for payment of the costs as the case was simply adjourned to may 14, 1987. on that day also neither the costs were paid nor offered. even if there was some cause for amar singh not to appear in person on that day he was expected to make arrangement for sending the money to his counsel to be offered otherwise he very well knew that for non-payment of the conditional costs his application was to stand as dismissed.6. finding no merit in this appeal the same is dismissed with no order as to costs.

Full Judgment

ORDER

A.L. Bahri, J.

1. Defendant Amar Singh has filed this appeal against order of the appellate Court dated September 22, 1990 vide which application for restoration of the appeal, dismissed in default, was rejected.

2. Labh Singh plaintiff filed a suit for recovery of Rs. 5000/ and interest thereon amounting to Rs. 600/- on the basis of refund of earnest money. He also claimed future interest. The trial Court on April 25, 1985 dismissed the suit. The plaintiff filed an appeal which was allowed on November 7, 1986. The appellate Court decreed the suit for the recovery of Rs. 5600/- only i. e, future interest was not allowed. Since this judgment was delivered ex-parte, defendant Amar Singh moved an application for setting aside the exparte decree This application of Amar Singh was allowed by the appellate Court on April 9, 1987. The ex parte decree was set aside subject to payment of Rs. 100/- as costs. The appeal was adjourned to May 7, 1987 On that day the costs were not paid or offered. Still the appellate court adjourned the case to May 14, 1987. Neither costs were paid by Amar Singh nor he was represented on that day. The application thus stood dismissed with the result that decree passed on November 7, 1986 stood restored. Another application was filed for setting aside ex-parte order aforesaid. The application is dated May 27, 1987 on the ground that Amar Singh was ill and could not appear and secondly his counsel also could not appear as he was out of station. This application was contested by the plaintiff Labh Singh and the following issue arising out of the pleadings was framed :---

(1) Whether there are sufficient grounds to restore the application OPA.

3. Only Amar Singh appeared as his own witness as AW-1 and deposed about his illness from May 7, 1987 to May 20, 1987. He is alleged to have taken treatment from Sher Chand Hakeem who was not produced as a witness. On the other hand RW-1 Labh Singh appeared and controverted the allegations of the defendant. The appellate Court decided the issue against Amar Singh and dismissed the application as no sufficient cause was shown.

4. After hearing counsel for the parties I am of the opinion that Amar Singh defendant had tried his best to delay the proceedings in the aforesaid suit where decree had been passed against him. Not only that, he failed to pay a sum of Rs. 100/- only as costs which were imposed while allowing his application for setting aside the ex-parte decree passed by the appellate Court but he did not produce relevant evidence in support of the issue framed in spite of the fact that opportunity was allowed on payment of Rs. 50/- as costs. It was the last order vide which costs were imposed. Although earlier on two occasions costs imposed were paid. The fact remains that Sher Chand Hakeem who is alleged to have examined the defendant Amar Singh about his sickness for the relevant period, was not produced in spite of opportunities having been allowed. Then it was the statement of Amar Singh alone which was to be taken into consideration and the lower appellate court rightly chose not to place implicit reliance thereon.

5. Even otherwise there was no justification for allowing one after another opportunity to Amar Singh defendant in the matter of payment of costs. As already stated above, on April 9, 1987 the application was allowed subject to payment of Rs. 100/- as costs and the case was adjourned to May 7, 1987. On that day costs were not paid. Automatically application for restoration stood dismissed. The order of dismissal of the application could have been formally passed on that very day for non-payment of the costs, if at all, it was necessary. Although order dated May 7, 1987 did not show that another opportunity was allowed to Amar Singh for payment of the costs as the case was simply adjourned to May 14, 1987. On that day also neither the costs were paid nor offered. Even if there was some cause for Amar Singh not to appear in person on that day he was expected to make arrangement for sending the money to his counsel to be offered Otherwise he very well knew that for non-payment of the conditional costs his application was to stand as dismissed.

6. Finding no merit in this appeal the same is dismissed with no order as to costs.

Same Court & Year Punjab and Haryana · 1992 Same Parties Amar Singh vs Labh Singh Same Subject Civil Same Judge A.L. Bahri, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13

Civil