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Raj Kumar vs Swaran Singh on 29 January, 2018

2. In this revision petition, it has been stated that in a suit for declaration and
permanent prohibitory injunction titled Parshotam Dass (by his legal
representative Raj Kumar) Vs. Swaran Singh, the defendant (herein
respondent) proceeded against ex parte after he failed to appear in the case
continuously for several dates of hearing and ultimately after recording ex
parte evidence a decree was passed on 27.02.2012, declaring the alleged
adoption of defendant No.1 by one Smt. Khetri Devi, the paternal aunt of
the petitioner, to be null and void, and defendant was permanently
restrained from selling alienating, interfering or transferring any movable or
immovable property of the said Smt. Khetri Devi. It has further been
stated that the husband of the one Smt. Khetri Devi, Sh. Ram Nath, was one
of the members of the family along with Sh. Lekh Raj, Parshotam Dass and
Kuldeep Raj (sons of sh. Lakmi Chand), whom land measuring 16 kanals 3
marlas in Khasra Nos.34, 35, 62 and 69 of village Kotli Gallabana was

C. Rev. No.18/2013 Page 1 of 11
allotted , and all the four were entitled to the said land and the rights about
the same, whether occupancy or otherwise, in equal shares. The said Sh.
Ram Nath expired, leaving behind his widow Smt. Khetri, and she is said to
have later, after the death of her husband, adopted one Sh. Swaran Singh as
her son. Sh. Parshotam Dass, one of the members of the said family, filed a
suit for declaration that the alleged adoption by the said Smt. Khetri Devi
was null and void and also for permanent prohibitory injunction restraining
the defendant from interfering, selling or transferring the said land or any
part thereof. The defendant filed his written statement on 10.12.2010 and
thereafter absented himself on several dates of hearing. The Court, being
satisfied that there was no cause for the defendant not to appear in the case,
proceeded ex parte against him on 20.09.2011. In the meantime, father of
the petitioner, Sh. Parshotam Dass (Plaintiff), died on 01.03.2011, and the
petitioner was brought on record as the legal representative of the deceased
on 06.01.2012, of course upon his application in that behalf. The Court,
after recording ex parte evidence, decreed the suit on 27.02.2012. Long
thereafter, the defendant made an application for setting aside the ex parte
decree under Order 9 Rule 13 of the Code of Civil Procedure on 05.06.2012,
obviously long after the expiry of the period of limitation; and along with
prayer for condoning delay by means of a separate application was filed .
The Munsiff R.S.Pura allowed both the applications, one for condoning
delay and the other for setting aside the said ex parte decree by his order
dated 04.02.2013. It is further contended that the ground on which the delay
in filing the application for setting aside the ex parte decree is bought to be
condoned is that Parshotam Dass plaintiff had come closer to the defendant
and agreed to withdraw the case as compromised, but unfortunately died
before the same could be withdrawn, and that he (defendant) had informed
his counsel about the said agreement, and that the application of the
petitioner herein for bringing him on record as legal representative of the
deceased had been allowed without intimation to him either by the Court or

C. Rev. No.18/2013 Page 2 of 11
by his counsel. The averments made in the said application are not only
vague but also self contradictory. There is nothing in the application about
when the said Parshotam Dass agreed with the defendant to compromise or
withdraw the suit, and why the same could not be compromised or
withdrawn before his death, nor about how he took it that he needed not to
appear in the Court until the case was terminated in a compromise or
withdrawal. It is a cock-and bull story that makes up for the cause to
condone delay on the said ground. The counsel for the respondent herein
had received the copy of the application to the petitioner for bringing him
on record as legal representative of his deceased father, and it does not
sound plausible that if he had been informed about what the deceased
Parshotam Dass had allegedly agreed, he would not have informed the
defendant of such application or continuance of the proceedings, or in other
words, would have kept this information back from him. A party may or
may not appear in the case personally; but he is not absolved of his
responsibility to be diligent in the pursuit thereof. There can be no valid
reason for the defendant not to appear in the case on an unfounded belief
that the case might not proceed. There is no obligation in law either on the
Court or the Counsel for the defendant to inform the latter of the grant of the
application for brining on record the legal representatives of the deceased
plaintiff. Thus, there is absolutely no cause made out in the application for
condoning delay. It is further stated that the application for condoning delay
does not disclose when and how the defendant came to know of the ex parte
decree. At the time of arguments, when it was pointed out that there was
nothing in the said application in that behalf, the defendant got the clue that
he had missed out on that important aspect of the matter. The very fact that
the defendant had offered no explanation at all of each day’s delay after the
passing of the said decree, and he had not come out clearly on when and
how he acquired the knowledge of the decree if he had, not already known
of the same, goes a long way to decimate the cause pleaded in the

C. Rev. No.18/2013 Page 3 of 11
application for condoning delay as a farce. It is unfortunate and a matter of
serious concern that after the defendant came to know from the said
arguments that there was no substance in the application, and the same
could not survive the deficiency of the cause as pointed out, he manipulated
the interpolation in para 5 of the same. How this expression has got into this
application is not forth coming and it cannot but be by manipulation of the
defendant. It calls for a thorough probe when and how the aforesaid
expression has found its way into the said application; it seems to be done
by and at the instance of the defendant between 10 September 2012 and 6
February 2013. The aforesaid addition in the said application is not
supported by any order of the Court and is not made in accordance with any
procedure established by law; it has been made without taking the Court
into confidence. A fraud has been thus played on the Court and also on the
petitioner. In the circumstances, the defendant is not entitled to any
indulgence of the Court and his application for condoning delay is liable to
be dismissed. It is further contended that the defendant made an application,
purportedly under Order 6 Rule 7 of the CPC for amendment of the earlier
application for condoning delay on 09.01.2013. The petitioner has had no
opportunity to file objection to the said application and was never ever privy
to how it was disposed of. Even from the said application it appears that
there was nothing about the said addition made in Para 5 of the application
for condoning delay; neither any such amendment was sought nor allowed.
The application for amendment is misconceived in that Order 6 Rule 17 of
the CPC has no application in such a case, therefore, was not entitled to be
considered at all and so are disentitled the averments made therein. It is
further contended that the delay in filing the application for setting aside
exparte decree is not explained at all, and no cause, much less sufficient, is
shown for the absence of the defendant on several dates of hearing until the
decree was passed. No explanation is tendered for each day’s delay after the
passing of the decree. The trial Court thus wrongly condoned the delay and

C. Rev. No.18/2013 Page 4 of 11
took up the application for setting aside exparte decree for consideration. No
evidence has been led by the defendant on his application for condoning
delay. The application for setting aside exparte decree is not based on any
valid ground..

Source: IK

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Raj Kumar vs Swaran Singh on 29 January, 2018


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