Present : Mr. M. L. Saggar Senior Advocate with Vs. Smittri Devi and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1062977
CourtPunjab and Haryana High Court
Decided OnJul-11-2013
AppellantPresent : Mr. M. L. Saggar Senior Advocate with
RespondentSmittri Devi and Another
Excerpt:
in the high court of punjab and haryana at chandigarh cr no.4079 of 201.(o&m) date of decision :11. h july 201 kanta devi & another …. petitioners versus smittri devi & another …. respondents coram : hon’ble mr.justice l.n.mittal **** present : mr.m.l. saggar, senior advocate with mr.inderpal singh, advocate for the petitioners.**** l.n.mittal, j. (oral) cm no.14615-cii of 2013 allowed as prayed for. main case defendants kanta devi and her daughter aruna kumari have filed this revision petition under article 227 of the constitution of india impugning order dated 23.10.2012 annexure p-2 passed by the trial court and judgment dated 21.05.2013 annexure p-3 passed by the lower appellate court thereby dismissing application moved by petitioners under order 9 rule 13 of the code of civil procedure (in short, cpc) for setting aside ex parte proceedings ordered vide order dated 26.08.2009 and for setting aside the consequent ex parte judgment and decree dated 01.09.2009. - 2- cr no.4079 of 2013 the petitioners alleged in their application that petitioner no.2 has since got married and petitioner no.1 was, therefore, pursuing the case on behalf of petitioner no.2 as well. however, due to ill health, petitioners could not contact their counsel and could not give instruction on 26.08.2009 and accordingly their counsel in the trial court pleaded ‘no instructions’ and ex parte proceedings were ordered against the petitioners on 26.08.2009 and ex parte judgment and decree were passed on 01.09.2009. the petitioners alleged that they were under the bonafide belief that they were being properly represented through the counsel. they learnt of the aforesaid order and judgment and decree when they contacted their counsel about fate and date in the case. the application was opposed by respondents/plaintiffs. it was pleaded that sufficient opportunities were given to the petitioners and they were duly informed by their counsel and after long wait, the court had to pass the necessary order. averments made by the petitioners were controverted. learned trial court vide order annexure p-2 dismissed the application moved by defendants/petitioners.appeal against the said order preferred by petitioners stands dismissed by learned additional district judge vide judgment annexure p-3. feeling aggrieved, defendants have filed the instant revision petition to challenge orders of the courts below. i have heard learned counsel for the petitioners and perused the case file. counsel for the petitioners contended that in view of section 17 cpc, the plaintiffs could not have filed this suit at hoshiarpur having - 3- cr no.4079 of 2013 already filed a suit at amb in himachal pradesh. the contention is irrelevant for the decision of the instant revision petition, which does not pertain to merits of the suit. counsel for the petitioners next contended that if counsel for the petitioners had pleaded ‘no instructions’, fresh notice should have been issued to the defendants. the contention cannot be accepted. if this contention is accepted, then a party intending to delay the disposal of the case with malafide intention would be successful. the party after service of notice in the case would engage counsel who would seek adjournments for the proceedings of the case and would then plead ‘no instructions’ and then notice would go to the party again and the process would be repeated. such mischievous designs of the litigant cannot be allowed to be fulfilled. once the defendants had been served in the suit and they were being represented by the counsel engaged by them, there was no requirement of issuing fresh notice to the defendants. it is worth mentioning that the petitioners in support of their version did not lead any evidence whatsoever in spite of opportunities. consequently their application has been rightly dismissed because there was no evidence whatsoever at all in support of the averments made by the petitioners in their application. even otherwise, the plea that petitioner no.2 had got married and therefore, petitioner no.1 was pursuing the case on behalf of petitioner no.2 as well and that petitioner no.1 being ill, could not give instructions to the counsel, cannot be accepted. means of communication are very fast these days and are available readily and practically at no cost. even if - 4- cr no.4079 of 2013 petitioners could not physically go to the counsel to instruct him, they could at least remain in telephonic contact with their counsel. consequently, the aforesaid plea is completely unacceptable. the application filed by the petitioners was also barred by limitation. ex parte judgment and decree were passed on 01.09.2009 whereas application for setting aside the same was moved on 25.03.2010 i.e.after more than six months as against limitation period of 30 days. since the defendants had been duly served in the suit, limitation period for filing the application commenced on the passing of the ex parte judgment and decree and not from the alleged date of knowledge. there is also no explanation why the petitioners did not contact their counsel for almost seven months since prior to 26.08.2009 till 25.03.2010. it is thus manifest that application filed by the defendants/petitioners has been rightly dismissed by the courts below. impugned orders of the courts below do not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this court in exercise of supervisory jurisdiction under article 227 of the constitution of india. the revision petition is bereft of any merit and is accordingly dismissed in limine. 11th july, 2013 (l.n.mittal) ‘raj’ judge
Judgment:

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR NO.4079 OF 201.(O&M) DATE OF DECISION :

11. h JULY 201 Kanta Devi & another ….

Petitioners Versus Smittri Devi & another ….

Respondents CORAM : HON’BLE Mr.JUSTICE L.N.MITTAL **** Present : Mr.M.L.

Saggar, Senior Advocate with Mr.Inderpal Singh, Advocate for the petitioneRs.**** L.N.MITTAL, J.

(ORAL) CM No.14615-CII of 2013 Allowed as prayed for.

Main Case Defendants Kanta Devi and her daughter Aruna Kumari have filed this revision petition under Article 227 of the Constitution of India impugning order dated 23.10.2012 Annexure P-2 passed by the trial Court and judgment dated 21.05.2013 Annexure P-3 passed by the lower Appellate Court thereby dismissing application moved by petitioners under Order 9 Rule 13 of the Code of Civil Procedure (in short, CPC) for setting aside ex parte proceedings ordered vide order dated 26.08.2009 and for setting aside the consequent ex parte judgment and decree dated 01.09.2009.

- 2- CR No.4079 of 2013 The petitioners alleged in their application that petitioner No.2 has since got married and petitioner No.1 was, therefore, pursuing the case on behalf of petitioner No.2 as well.

However, due to ill health, petitioners could not contact their counsel and could not give instruction on 26.08.2009 and accordingly their counsel in the trial Court pleaded ‘no instructions’ and ex parte proceedings were ordered against the petitioners on 26.08.2009 and ex parte judgment and decree were passed on 01.09.2009.

The petitioners alleged that they were under the bonafide belief that they were being properly represented through the counsel.

They learnt of the aforesaid order and judgment and decree when they contacted their counsel about fate and date in the case.

The application was opposed by respondents/plaintiffs.

It was pleaded that sufficient opportunities were given to the petitioners and they were duly informed by their counsel and after long wait, the Court had to pass the necessary order.

Averments made by the petitioners were controverted.

Learned trial Court vide order Annexure P-2 dismissed the application moved by defendants/petitioneRs.Appeal against the said order preferred by petitioners stands dismissed by learned Additional District Judge vide judgment Annexure P-3.

Feeling aggrieved, defendants have filed the instant revision petition to challenge orders of the Courts below.

I have heard learned counsel for the petitioners and perused the case file.

Counsel for the petitioners contended that in view of Section 17 CPC, the plaintiffs could not have filed this suit at Hoshiarpur having - 3- CR No.4079 of 2013 already filed a suit at Amb in Himachal Pradesh.

The contention is irrelevant for the decision of the instant revision petition, which does not pertain to merits of the suit.

Counsel for the petitioners next contended that if counsel for the petitioners had pleaded ‘no instructions’, fresh notice should have been issued to the defendants.

The contention cannot be accepted.

If this contention is accepted, then a party intending to delay the disposal of the case with malafide intention would be successful.

The party after service of notice in the case would engage counsel who would seek adjournments for the proceedings of the case and would then plead ‘no instructions’ and then notice would go to the party again and the process would be repeated.

Such mischievous designs of the litigant cannot be allowed to be fulfilled.

Once the defendants had been served in the suit and they were being represented by the counsel engaged by them, there was no requirement of issuing fresh notice to the defendants.

It is worth mentioning that the petitioners in support of their version did not lead any evidence whatsoever in spite of opportunities.

Consequently their application has been rightly dismissed because there was no evidence whatsoever at all in support of the averments made by the petitioners in their application.

Even otherwise, the plea that petitioner No.2 had got married and therefore, petitioner No.1 was pursuing the case on behalf of petitioner No.2 as well and that petitioner No.1 being ill, could not give instructions to the counsel, cannot be accepted.

Means of communication are very fast these days and are available readily and practically at no cost.

Even if - 4- CR No.4079 of 2013 petitioners could not physically go to the counsel to instruct him, they could at least remain in telephonic contact with their counsel.

Consequently, the aforesaid plea is completely unacceptable.

The application filed by the petitioners was also barred by limitation.

Ex parte judgment and decree were passed on 01.09.2009 whereas application for setting aside the same was moved on 25.03.2010 i.e.after more than six months as against limitation period of 30 days.

Since the defendants had been duly served in the suit, limitation period for filing the application commenced on the passing of the ex parte judgment and decree and not from the alleged date of knowledge.

There is also no explanation why the petitioners did not contact their counsel for almost seven months since prior to 26.08.2009 till 25.03.2010.

It is thus manifest that application filed by the defendants/petitioners has been rightly dismissed by the Courts below.

Impugned orders of the Courts below do not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

The revision petition is bereft of any merit and is accordingly dismissed in limine.

11th July, 2013 (L.N.MITTAL) ‘raj’ JUDGE