Civil Revision Noa6473 of 2006 v. Sm t rishna

passedby Shri Raj eshSharm a Civil JudgeJunior Division Faridabad and j udgm entdat ed 2182006 passedby Shri AKRaghava Addit ional Dist rict Judgc I I Faridabad vide which t he appealprefcrrcdagainst t he order dat cd 291005 was dism issed Brieflyst at cd t he fact s of t he prcscnt casc are t hat Kishan Lal filed a suit againstdcfcndant s and t hat suit was ult im at elydecreed byShri Raj Kum ar Civil Judge 3 Class l Faridabad by passingex part edecree dat ed 2981982 is allcgedby t he defendant t hat he was not in t he knowledgcof t he j udgm ent I t was only on 163996 when one of t he offlcials of t hc Court cam c t o t hc propert y of t hc defendant t o vacat e t he sam e ot herwise hc would be cj ect edwit h t hc policc hclp The defendant was surprisedI at er and on . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh inquirycam e t o know t hat JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 81 r Civil Revision No6473 of 2006 3 no proper servicc was cfTect ed upon him nor any publicat ionwas effect ed and hc had I lO knowlcdgcabout t hej udgm entand decree The plaint iffhad m anagcdt hat scrvicc should not be cffect ed upon t he defendant of t hat case and t hat is why he obt aincd t hc cx3art e decrce and service was not cffect ed upon defcndant or his wifc Janki Devi and t hat t herc were t hum b im pressionof Janki Dcvi on which I TI has becn m cnt ioncd inst cad of RTl I t also bcars t he t h um b im prcssionon sum m ons in which RTI is m ent ioned The report dat cd 651982 carries no weight Thc land was allot t cd t o t hc defendant by Wakf Board and hc cont inued in t he of t hc suit land SI OCC 1962 The exlart e order would I iable t o bc set aside So t he applicat ionunder Order 9 1r 0 C I C5 I Z r1 C45 Rule 13 CPC for sct t ingasidc exoart e decree dat ed 2931982 was Olede Thc said applicat ionwas cont cst ed by t he plaint iff and it I S Wo pleadcdt hat Kishan Lal refused t o aceeptt hc servicc on sum m ons which was duly served upon him and t he proccss afOxed at his house and he was fully awarc t hc proceedingsof t his case Thc decrcc holdcr filed a suit for declarat ion as well aS inj unct ionNo 30f31994 and it was m cnt ioncd about t hc presentsuit in t hc said casc and t hat case was also dccrccd in favour of BhagatSinsh Kishan Lal had got fuI l knowledgeof t he proccedingsof t he said case Kishan Lal is not t he owner t hc suit propert y Thc sum m ons of t he eecut ion proceedingswere also served upon Kishan Lal but hc rcfused t o receivc t he sum m ons BhagatSinghalso Oled t he suit carlicr rcgardingt hc inj unct ionwhich was also procecdedagainstclart e . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh and was decided JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 82 1 1 Civil Revision No6473 of 2006 4R 4 ln favourof t he decree h81der and Kishan Lal was also served He also in t hc said case and Oled t hc replyeThe said decree dat ed 651002is not I iable t o be sct aside bccause t he defcndant s were aware of t he of t he said case The I and was allot t ed t o t he defendant by t hc Punj ab Wakf Board Therefore t he defendant s havc praycdfor dism issal of t he presentapplicat ion Following issucs were fram cd 1eWhct hcrt here are sufficicnt groundfor set t ingaside t he and decree dat ed 2981982 in Civil Suit No 420182 2 OPA 2 Relief FoI lowingaddit ional issue was fram cd 1e Whet her t he prescnt applicat ionI S barred by law of I im it at ion 2OPR aforesaid issuesa The part ieshave I ed t heir respcct iveevidence on t he 1 C 0 0 I C I Z t r I a5 7 Z Qm CeReNo 7249 of 2008 Pct it ioneKrishan Lai has flled t h is revision pct it ion againstt he order dat ed 8A2008 passedby Shri SKGarg Civil Judge Senior Divisior Faridabad vidc which pet it ioncrpraycdfor init iat ion of cont em ptof Court procecdingsagainstt he decrec holder Gian ChandSI I SHO Police St at ion old Faridabd and bailiff of t hc Court and for rest orat ion of posscssionof t hc prcm isesin disput ct o t hc j udgm ent The fact s of t hc case . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh are t hat exccut ion pet it ionwas filed by JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document t hc decrec holder for execut ingt he dccree dat ed 290901982 The decree 83 r ivil Revision No6473 of 2006 5 r 0 0 Co Z 08 7 Z 0a holder st at ed t hat t he j udgm entdcbt or was rcst raincd from int crfering I ll his posscssionovcr t hc suit propert y and from raising any const ruct ion over t he suit propcrt yvidc decrec dat ed 29091 982 No appealwas filed by t hc j udgm entdebt or againstt hc decrcc in quest ion The j udgm entdebt or illegally him from t he suit propert y and also raised const ruct ion t he suit propert yaft er t he passingof t he dccree and t hereforc a direct ion beissued t o t he dccrecloldert o rem ove his const ruct ion from t he suit propcrt y and t o hand ovcr t he of t he suit propert y t o t hc decree holder The copy of t hc sam c applicat ionwas givent o decree holder Shri BhagatSinghat t he sit e in disput eand at t hat t im c const ruct ion work was in progrcss Thc applicantasked t he SHO and t he decree holder t o st opt hc const ruct ion on t he prem iscsin disput eand t he SHO assured t hat he would getit st oppedaft er havinginst ruct ions from t he higheraut horit ies Thereaft er SI 10 skippedof from t he sit e in disput ee Thcreaft cr m ore t han 15 persons arm ed I vit h st icks guns et ce assem bled t here and const ruct ion work was cxpcdit ed He showed t he copy ofst ayordcr dat ed 18031996 and asked t he dccrcc holdcr t o obey t he said order Thc dccrec holdert ook up t hc copy of ordcr from t he hands of JD and t orn int o piecesand said wit h chaI lengingt onc t hat he did not care for any such st ay order Thc j udgm entdebt or im m ediat elyran t o t he policest at ion Old Faridabad and asked t he SHO Shri Gian Chand t o get t he st ay order com pliedwit h and t o st op t he const ruct ion . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh t he sit e I n disput e JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 84 1 Civil Revision No6473 of 2006 6 m r 0 C I 0 I Z I 08 7 Z 0 but he refused t o provideany hclpin t hc m at t er st at ingt hat he had 110 inst ruct ions in t hat regard Thereaft er t he j udgm entdebt or t ook t he phot ographerand asked him t o t ake cert ain snaps of t he const ruct ion work beingcarried out at t he prcm isesin disput e The phot ographer was pushedaside by one of t he m uscle m an of t hc decrce holder and he was not allowed t o t akc phot ograph Thc dccree holdcr in collusion wit h SHO Shri Gian Chand and bailiffand ot hcr policcofficials violat cd t hc ordcr oft hc Court Thc dccrcc in quest ionwas part e decree for perm anentinj unct ionin which t he warrant of posscssioncould not bc issued and t he decree holder obt ained t hc warrant of posscssionby m isleadingt hc Court The decrce holder filed rcply t o t he applicat ionand opposed t he applicat ionon t hc groundt hat t he warrant of posscssionwas issued I ll his favour by t he Court and t he possessionwas dcI ivcred t o him by t he bailiff on 18031996 at about 1200 noon and t he j udgm cntdebt or and his son Dcv Raj affixed t hcir t hum b im prcssionand signat ureson t he warrant of posscssionPossession was dclivered t o him bcforc passingof t he said ordcr of t hc Court I le was inform ed about t he st ay order of t hc Court on 18031996 at about 800 PM and aft er t hat no const ruct ion was allowed t o be raised at t hc sit e in disput c Followingissucs wcrc fram cd on 13062001 1e Whet her t he respondcnthad com m it t ed brcach of t he . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh order passedby t he Court 20PP JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 85 1 f Civil Rcvision No473 of 2006 7 m 0 0 I C I Z 4 C I 08 01 7 Z 2e Whct hcr t he presentapplicat ionis not m aint ainable I ll t hc prcscntform 90PR 3e Relicf dcbt or appcaredin t he wit ness box as AW4 He also exam incd AW2 I I ari Singh AH3 Aas Moham m ad AW4 Surender Kum ar Jain AH SheDev Dut t AH6 Sh SKJain AW4 ShRaj Kum ar On t he ot hcr hand t he deeree holdcr has exam ined DHHl Shri Tribhuwan Singhbailiff DI lH2 Gianender Kum ar DlI W3 Sh Gian Chand DHW4 Sh Dalip singh DHW5 ShRaj Kum ar DHWw6 Shri Mahender Singh Aft er hcaringt hc I earned counsel for t he part ies t he t rial Court dism issed bot h t hc Feeling dissat isfied wit h t hc a bovc ordcrs t he has fiI ed t he inst ant revision pct it ion I havc heard I carned counscl t hc part iesand have m inut elygonc t hrought he rccords of t hc casc wilh t heir hclp The m ain cont roversyI t l t he prescnl case is whet her t he ex part edecree dat ed 23A1992 is liablc t o be set aside I n t his rcgardalso t here are t wo aspectoft he case al whet her defendant in t he m ain suit which culm inat ing int o t he decree dat ed 23A1982 was dulyserved and bl whet her t he applicat ionm oved by t he presentpet it ioner was wit hin lim it aon Learned Civil Judgc 6Junior Divisionl Faridabad in it s . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 86 Civil Revision No6473 of 2006 4 8 order dat ed 292005 decided issue Noel favour of t he present pet it ionert hat t here wasno due service on t he applicat ion However regardinglim it at ion was decided againstt he present pet it ioner Defendant Kishan Lal prcferredappealagainstt he order dat ed 29082005 vide his applicat ionfor set t ingaside expart e decree dat ed 23A1982 was declined The learned Addit ional Dist rict Judgein MCA N033 of3082005 decided on 2182006 ret urned t he Ondingofbot h t he 1SSues againstt he pet it ionerand held t hat defendant was duI yserved and t he applicat ionis not wit hin lim it at ion Aft er hearingbot h t he sides I am of t he considered Vlew t hat findingof learned Addit ional Dist rict Judgevide j udgm entdat ed 0 C3 I C5 I Z m 2L81006 t hat pet it ionerhas been dulyserved and t hat applicat ion1S I 08 ClO not wit hin lim it at ion t hese findingsdo not call for any int erference 7 Z m The respondenthas producedOll t he file sum m ons copy of which 1S OWle These sum m ons issued againstKishan Lal and Sham a defendant Accordingt o t he report on t he sum m ons Kishan Lal was served t hroughJanki Devi his wife whereas Sham a son of Sukhi was served in person The counsel for t he revisionist has 8t rt her subm it t ed t hat since LTI 1S rnent ioned in respect of t hum b im pressionof Janki Devi wife ofpet it ionerand RTI has been m ent ioned in respectoft hum b im PressionOf Sham a and as such t his is not a valid service The said argum entcannot prevailupon Mere m ent ioningof LTI or RTI inst ead of RTI . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh invalid LTI respect ivelydo not m ake t he sum m ons JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document The plaint ifYhas dischargedhis onus by sum m oningt he r9 87 Civil Revision NoS473 of 2006 9 processserver regardingSCrVlCC of Kishan Lal t hroughhis wife Janki and Sharm a The pet it ionercould have provedt his fact by exam ining any Docum entExpertt hat t hum b ofJanki Devi and Sham a do not bear on t he sum m ons Therefore t he service efTect ed is a valid service far as t he presentpet it ioneris concerned I t does not lie in his m out h t hat t here was no service on t he pet it ioner I n aut horit y Aiit a Sharm a VSe Rakesh Kum ar Sharm a 1998 21 RCR 565 Single Benchj udgm entof t his Court it has been held t hat where t here is service of t he not ice on t he dcfendant and he st ill ignorest he said lit igat ionit would be whollyunfair form ally servede for t he person t hat he has not been The ot her lim b of argum entraised by t he learned counsel for t he pet it ioneris t hat t he sum m ons bY t he ofplaintand as such t his is not a valid service But t his Court 10 0 0 I 0 I Z C I 08 7 Z Om aut horit yDev Karan VS Bhawan Dass 1991 1ll PLR 206 held t hat where t he defendant was personallyserved and copy of plaintwas not served it beinga m ere irregularit yt he exepart e dccree cannot be set So far as t he ft ndingof bot h t he Court s below t hat t he under Order 9 Rule 13 CPC is not wit hin lim it at ion on t he fact s of t he present case 1S concerned t hal beinga findingof fact ret urned by bot h t he Court s below cannot be int erfered The applicat ionfor set t ingaside exart e proceedingswas preferredon 2131996 BhagatSinghfiled a suit for declarat ion wit h . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 88 6 Civii Revision No6473 of 2006 10 relief of inj unct ionvide case No of31994 The decreelolder m ent ioned in para No5 6ft hat plaintt hat his suit NoA30 0f1982 dat ed 23A1982 has becn decreed exm part eKishan Laoet it ioner was duly served in t he said case and 8led replyOll 111994 So even if adverse 1S t aken in t hat case acquiredt he knowledgeof t he dccrce dat ed 23e41982 However on 11A1994 t he presentpet it ionerm ust have t he presentpet it ionhas been flled Oll 2131996 ic t wo years aft er filing t he writ t en st at em cnt in t he said case So in t hese circum st ances bot h t he Court s bclow have right ly held t hat applicat ionis not wit hin lim it at ion The Honble ApexCourt in aut horit yMahabir vs Subhash and ot hen200811 SCC 358 held t hat period of lim it at ion t o be reckoned from t he dat e of knowledgeof passingt he exart e decree if r 0 C I 0 I Z I a5 I 7 t he sam e is barred by lim it at ion I n t hese circum st ances in view of Qm Sect ion 30ft he Lim it at ion Act no Court shall havej urisdict iont o any suit or applicat ionif t he sam e has been flled aft er expiryof periodof lim it at ion Aut horit yMls Markland PAd and ot hers VS St at e of Guj aratAI R 1989 Guiaral j 4 relied upon by t he counsel for t he pet it ionert hat delayin Olingt he applicat ioncan be condoned does not helpt he case oft he pet it ioner Scct ion 50ft hc lim it at ion Act applies t o t he appeal Moreover it is not t he casc oft he pet it ionert hat delayin fllingt he pet it ionbc condoned So t he pet it ionercannot t ake benefit oft he said aut horit y . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 89 A Civil Revision NoS473 of 2006 11 Aut horit yI 2I CShanna 8c Ors vs Ashok Naar Wele Assodat ion and Co 2001 1 Civil Coun Cases 570 a9elhi High Counl lS t o t he fact s of t he presentcase as in t he said case was provedt hat t he plaint iffhas playeda fraud in obt ainingexlart e decree No such allegat ionis provedon t he fact s oft he presentcasee I n aut horit ySm t Asha Y vs Sm LKant a Gupt a 2002 11 Cnlil Court Cases pt iee 345 is as in t hat case t his Court com es t o t he conclusion t hat opposit epart y has no sum cient t im e t o appear and t o answer t he claim oft he plaint i Aut horit yAiit Singh vs Sant okh Singh2002 81 Civil Coun Cases657Puniab cHarvanal relat es t o t he refusal oft he sum m ons So in view of t he above discussion bot h t he Court s beI ow have right lydism issed t he applicat ionunder Order 9 Rule 13 CPC preferredbyt he pet it ioner Now revert ingt o t he applicat ionfor is concerned t he order of t he t rial Court init iat ingcont em pt in t his regard r 0 C I C5 I Z I 08 QO 7 Z m also does not sufYer from any infirm it y I t is t he specificfindingof Court below t hat possessionwas delivered t o t he decreewholderby t he BailifYon 1831996 at 12110noon and Dev Raj SOll ofj udgm entdebt or fixed t hum b im pressionand signat ureson t he warrant of possession The order dat ed 1831996 was conveyedat 800pm Since t he possessionofsuit propert y has alreadybeen delivered in com pliancet o warrant ofpossessionso t he quest ionofcom m it t ingbreach oft he order oft he Court does not I n view of t he above discussion bot h t he pet it ionsare wit hout any subst ance and t he sam e st and dism isscd . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 90 Civil Revision No6473 of 2006 12 n A copy of t his j udgm cntbc sent t o t he t rial Court for st rict com pliancc 2010 SV rJ4 0 Cle c I 0 1 94 C p 1 1 m 1 0 C I C5 I Z r I 08 m m Z t l J JUDGE 9 . Anit a 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document