Meera & ORS v. Vinod Kumar & ORS

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Decided on: 11.11.2016 Meera and others ....Petitioners

Versus

Vinod Kumar and others ....Respondents CORAM: HON'BLE MRS JUSTICE REKHA MITTAL Present :

Mr. Ajit Singh, Advocate for the petitioners.

Ms. Indu Bala, Advocate for respondent No.1.

REKHA MITTAL, J.

The present petition directs challenge against orders dated 05.10.2010 (Annexure P4) passed by the Civil Judge (Jr. Division) Faridabad and dated 07.01.2012 (Annexure P5) passed by the Additional District Judge, Faridabad whereby application filed by the petitioners for setting-aside order dated 07.02.2005 initiating ex parte proceedings against Manoj Kumar (defendant No.1) predecessor-ininterest of the petitioners as well as ex parte judgment and decree dated 12.05.2008 has been dismissed by the trial Court and the order passed by the trial Court has been affirmed in appeal. A brief backdrop of the case is that Vinod Kumar, brother of Manoj Kumar filed a suit for possession by way of partition with consequential relief of permanent injunction in which the sons and daughters of late Sh. Ganga Charan were impleaded as defendants. Manoj Kumar appeared in the suit, filed the written statement but later absented from the proceedings resulting in initiation of ex parte

proceedings against him vide order dated 07.02.2005 and the suit was ultimately culminated into ex parte judgment and decree dated 12.05.2008. Manoj Kumar passed away on 13.11.2008 and the present application was filed by his widow and children for the aforesaid relief. The trial Court, in view of allegations and counterallegations of the parties appreciated the merits of the application and negated plea of the petitioners for setting-aside the ex parte proceedings and ex parte judgment and decree primarily on two counts namely that the applicants have taken the plea that Manoj Kumar suffered medically and went in coma and remained hospitalized for a long period but in support of that contention, they have not produced any document like medical certificate, etc. It has further been noticed that in the execution petition filed by the decree-holder, Manoj Kumar appeared through his counsel Sh. Satish Ambawata and power of attorney filed by Satish Ambawata, Advocate bears signatures of said Manoj Kumar.

Counsel for the petitioners is not in a position to assail the factual findings recorded by the trial Court with regard to failure of the petitioners to substantiate their plea that Manoj Kumar was suffering from an ailment much less remained in coma during the relevant period. The very fact that Manoj Kumar caused appearance in execution proceedings initiated in September, 2008 through a counsel further falsifies their plea that Manoj Kumar remained in coma and therefore, could not defend the proceedings. In this view of the matter, I do not find any error much less illegality in the consistent findings recorded by the Courts below negating plea of the petitioners that there are

sufficient grounds for setting-aside the ex parte judgment and decree. For the reasons aforestated, the petition fails and is accordingly dismissed.

11.11.2016 (REKHA MITTAL) yakub JUDGE Whether speaking/reasoned Yes/No Whether reportable:

Yes/No