MEENAKSHI I. MEHTA, J.
1. By way of the instant revision petition, the petitionerdefendant (here-in-after to be referred as ‘the defendant’) has assailed the judgment dated 09.12.2022 (Annexure P-4) passed by learned Additional Civil Judge (Senior Division), Nuh (for short ‘the trial Court’), whereby the application (Annexure P-2) moved by him under Order 9 Rule 13 CPC with a prayer to set-aside the ex-parte order dated 19.09.2015 as well as the ex-parte judgment (Annexure P-1) and decree dated 23.08.2017, has been dismissed and he has also laid challenge to the judgment dated 06.01.2023 (Annexure P-6) handed down by learned Additional District Judge, Nuh (for short ‘the Appellate Court’), dismissing the appeal, as preferred by him against the judgment Annexure P-4.
2. Bereft of unnecessary details, the facts culminating in the filing of the present revision petition, are that the respondent-plaintiff (here-in-after to be referred as ‘the plaintiff’) filed a Civil Suit against the defendant for seeking the decree for possession of the suit land by way of specific performance of the agreement to sell dated 10.09.2013, with a further prayer for the consequential relief of permanent injunction, while averring that the defendant had executed the above-referred agreement for selling the suit land to him @ Rs.40 lac per acre and had received a sum of Rs.5 lac as earnest money and the date of execution and registration of the sale-deed was stipulated as 16.04.2014 and though he (plaintiff) had always been ready and willing to perform his part of the afore-said agreement but the defendant had failed to do the needful in this regard. However, the defendant was proceeded against ex-parte in the Suit on 19.09.2015. Then, the plaintiff led his ex-parte evidence and after appreciating and evaluating the same, the trial Court decreed the said Civil Suit vide the judgment and decree dated 23.08.2017. Thereafter, the defendant moved application Annexure P-2 with a prayer for setting aside the above-mentioned ex-parte order as well as the judgment and decree but the same was dismissed by the trial Court vide judgment Annexure P-4 and the appeal filed by him against the said judgment, has also been dismissed by the Appellate Court vide the judgment Annexure P-6.
3. I have heard learned counsel for the petitioner-defendant as well as learned counsel for the respondent-plaintiff-caveator in the instant revision petition and have also perused the file carefully.
4. Learned counsel for the defendant has contended that the defendant had never been properly served in the Civil Suit because the summons issued to him for 04.07.2015 is stated to have been received by his son Deepak but he was a minor at that time and the summons issued to him (defendant) for 20.07.2015 is claimed to have been received by his son Rishabh Sharma whereas in fact, none of his sons is named/known as such. Secondly, he has contended that Mr. Duli Chand, Advocate is recorded to have appeared and to have filed the Memos of Appearance on behalf of the defendant in the afore-said Suit on 20.07.2015, 01.08.2015 and 29.08.2015 but he had, actually, never been authorised by him (defendant) to do so and rather, the said Advocate had done so in connivance with the plaintiff because thereafter, he had stopped appearing in the Court and had, thereby, fraudulently got the defendant proceeded against ex-parte in the Civil Suit. Lastly, he has contended that the defendant came to know about the abovementioned ex-parte order and the judgment and decree on 12.05.2018 and then, he moved application Annexure P-2 on 02.07.2018 as during this interregnum, the Courts remained closed on account of summer vacations and thus, this application had been filed by him well within the prescribed period of limitation, i.e 30 (thirty) days but the trial Court as well as the Appellate Court have wronly declined the prayer as made by the defendant in this application. To buttress his contentions, he has placed reliance upon Dev Bhushan Gupta Versus Sat Narayan Bansal and others, 2012(49) RCR. (Civil) 21 (P&H); Sushil Kumar Sabharwal Versus Gurpreet Singh, 2002(3) R.C.R. (Civil) 431 (SC); Balwinder Kaur Versus Randhir Singh and others, 2017(4) PLR 286 (P&H); Bhagmal and others Versus Kunwar Lal and Others, 20106) R.C.R. (Civil) 941 (SQ and G.P. Srivastava Versus R.K. Raizada and Others, 2000(2) R.C.R. (Civil) 161 (SQ).
5. Per contra, learned counsel for the plaintiff has argued that both the impugned judgments, as passed by the Courts below, are perfectly legal and justified ones and therefore, the present revision petition deserves dismissal.
6. So far as the contention regarding the service of summons for 04.07.2015 upon Deepak, the minor son of the defendant, is concerned, Annexure P-10 is the copy of the statement of RW2 Rakesh, the Process Server, wherein he has categorically deposed that Deepak had informed him that his father, i.e the defendant, had gone out of station and he had provided him the contact number of the defendant who had informed him (RW2) on the phone that he had come to Faridabad and had asked him to hand over the summons to his afore-named son and he (RW2) had given the summons and also the copy of the plaint, to Deepak accordingly. Then, Annexure P-11 is the copy of the statement of RW3 Rakesh (Watchman) wherein he has also acknowledged his signatures on the said summons. The defendant did not examine his son Deepak as his witness to rebut or falsify the above-discussed depositions of RW2 and RW3 despite the fact that he could have been the best person for this purpose. Even otherwise, the trial Court did not pass any adverse order against the defendant on 04.07.2015 on the basis of the report made on the summons. Further, the contention regarding the service of summons issued for 20.07.2015, upon one Rishabh Sharma as the son of the defendant, also pales into insignificance in view of the fact that on the said date, Mr. Duli Chand Advocate, is stated to have put in appearance in the Court and to have filed the Memo of Appearance on behalf of the defendant in the Suit.
7. As regards the second contention qua the afore-said Advocate having unauthorisedly appeared on behalf of the defendant in the Suit on three above-mentioned dates, the same does not hold any water because the afore-named Advocate appeared in the witness-box as RW5 and a perusal of the copy of the statement made by him, i.e Annexure P-12, reveals that he has specifically deposed during his cross-examination that the defendant had personally visited him on his seat but had not contacted him thereafter. Even otherwise, in normal course of events, the defendant could and would have sought the redressal of his above-alleged grievance by reporting the matter to the competent authorities but Annexure P-7 (colly) is the copy of his testimony, consisting of the affidavit tendered and the statement made by him on 21.08.2019 while appearing as AW1 and he has categorically admitted therein that he had not filed any complaint in any Court or with the police against the afore-said Advocate. Rather, in para No.18(c) of its judgment Annexure P-4, the trial Court has specifically observed that in pursuance of Mark-S, i.e the complaint dated 27.08.2019, as moved by the defendant to the Bar Council of Punjab and Haryana against the abovenamed Advocate, he (defendant) had been asked to file the complaint as per the prescribed procedure but admittedly, he had not pursued the same. Thus, it is explicit that the afore-mentioned complaint had been moved by the defendant on 27.08.2019 after filing the application Annexure P-2 on 02.07.2018 and also deposing in the Court on 21.08.2019 and these facts unequivocally lead to an irresistible inference to the effect that complaint Mark-S had been filed by him (defendant) just to create evidence in support of his above-referred application and therefore, the same cannot be given any credence. Seen from yet another angle, in case the said Advocate had colluded with the plaintiff so as to get the defendant proceeded against ex-parte in the Suit, then he could have got the same done by remaining absent after filing the Memo of Appearance on his (defendant’s) behalf on the first/single occasion only and would not have continued to appear and file the Memos of Appearance on two subsequent dates of hearing in the said Civil Suit.
8. As regards the last contention qua application Annexure P-2 having been filed within the prescribed period of limitation, it is relevant and necessary to point it out here that in para No.4 in this application, the defendant has averred that he came to know about the ex-parte order as well as the judgment and decree, on 12.05.2018 on receipt of the summons in the execution petition whereas during his cross-examination as AW1, he has deposed that he had visited Mr. Bhoop Singh, Advocate, for some reason who told him that some case had been filed against him and that he did not remember the date and month of such meeting or the details of the case as disclosed by the said Advocate. The above-discussed discrepancy regarding the time and mode of the defendant having got the knowledge about the afore-mentioned ex-parte order, judgment and decree, eats into the vitals of the above-raised contention and renders the same completely untenable and in these circumstances, it is quite explicit that the defendant has not been able to establish that he had filed application Annexure P-2 well within the prescribed period of limitation.
9. The observations, as made in Dev Bhushan Gupta (supra), Sushil Kumar Sabharwal (supra), Balwinder Kaur (supra), Bhagmal and others (supra) and G.P. Srivastava (supra), are not of any avail to the defendant because the facts and circumstances of the present case are quite distinguishable from those of the cited above. In Dev Bhushan Gupta (supra), the Advocate, who had put in appearance in the Suit on behalf of defendants No.6 and 7, had stated that he had not been instructed by the said defendants to appear on their behalf and rather, he had so appeared at the instance of another counsel, whereas in the instant case, RW5 Shri Duli Chand Advocate had specifically stated during his cross-examination that the defendant had personally visited him on his seat. Then, in Sushil Kumar Sabharwal (supra), the defendant had allegedly refused to receive the summons and the Process-Server had not affixed the copies of the summons and the plaint on the wall of his (defendant’s) premises and had also made endorsement on the summons that no witness was available at the spot at that time, despite the fact that the said shop was situated in a locality where there were other shops and houses but in the present case, RW2 Process-Server Rakesh, has categorically deposed that after talking to the defendant on phone, he had handed over the copies of the summons and the plaint to his (defendant’s) son Deepak. Again, in Balwinder Kaur (supra), the trial Court had found that the defendant had not been properly served in the Suit but in this case, the afore-said Advocate had appeared in the Court to represent the defendant on three dates and the defendant has not been able to show that he had done so unauthorisedly or in collusion with the plaintiff.
10. Further, in Bhagmal and others (supra), it was observed that the limitation must be deemed to have started from the date of knowledge of the ex-parte decree but in the present case, the defendant, as discussed earlier, has not been able to establish the exact date of his having got the knowledge about the ex-parte order and the judgment and decree. Lastly, in G.P. Srivastava (supra), the defendant had approached the Court within the statutory time specified for getting the ex-parte order set-aside and he had also established sufficient cause for his non-appearance in the Court whereas it is not so in the instant case, as discussed above.
11. As a sequel to the fore-going discussion, it follows that the impugned judgments, as passed by both the Courts below, do not suffer from any illegality, infirmity, irregularity or perversity so as to call for any interference by this Court. Resultantly, the revision petition in hand, being sans any merit, stands dismissed.
