Nirmala Devi v. Girdhari Lal And ANR.

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 06.07.2017 Nirmala Devi .......Petitioner versus Girdhari Lal and another ......Respondents CORAM: HON'BLE MR. JUSTICE RAMENDRA JAIN Present: - Mr. Om Pal Sharma, Advocate, for the petitioner. RAMENDRA JAIN, J. (ORAL) Challenge in the instant revision petition under Article 227 of the Constitution of India, has been laid to the impugned order dated 12.04.2017 (Annexure P-2) passed by the trial Court, Ludhiana, for setting aside the judgment and decree dated 09.12.2014 in favour of the petitioner by accepting the application of respondent No.2 under Order 9 Rule 13 CPC.

In nutshell, petitioner claiming herself to be owner in possession of the suit land on the basis of sale deed No.20913 dated 09.03.2009, filed a suit for declaration and permanent injunction to declare the registered sale deed No.14688 dated 05.01.2011 as illegal, null and void, having no binding effects upon her rights and respondent No.1 be restrained from alienating the suit land in any manner whatsoever on the ground that respondent No.1, namely, Girdhari Lal, by hatching a criminal conspiracy with marginal witness and impersonating her, forged and fabricated the aforesaid sale deed No.14688 dated 05.01.2011 and got sanctioned mutation thereof in his favour. Upon notice, respondent No.1 appeared and moved an

-2application under Order 7 Rule 11 CPC for rejection of plaint alleging that no cause of action had survived against him as he had already sold the suit land to one Jagjit Singh. On noticing this fact, petitioner has also brought two applications on 13.12.2011 i.e. one under Order 7 Rule 17 and another under Order 1 Rule 10 CPC to implead the subsequent purchaser Jagjit Singh as party.

Respondent No.1 after moving his application under Order 7 Rule 11 CPC got himself proceeded ex parte.

However, the learned trial Court without deciding the above applications of the petitioner for impleading subsequent purchaser Jagjit Singh as party passed an ex parte judgment and decree dated 09.12.2014 in favour of the petitioner. Thereafter, respondent No.2 - Jagjit Singh claiming himself to be a bona fide purchaser of the suit land from respondent No.1 vide sale deed dated 15.02.2011, filed an application under Order 9 Rule 13 CPC for setting aside the aforesaid judgment and decree dated 09.12.2014 on the ground that same was obtained by playing fraud and that he came to know about the sale deed in favour of the petitioner from the application of respondent No.1 under Order 7 Rule 11 CPC dated 11.05.2012 to which reply was also filed by the petitioner.

Trial Court after hearing both the parties, accepted the application of respondent No.2 under Order 9 Rule 13 CPC vide impugned order dated 12.04.2017 (Annexure P2). Learned counsel for the petitioner contended that respondent No.2/applicant - Jagjit Singh was a stranger to the litigation, therefore, trial Court has erred in accepting his time barred application under Order 9 Rule 13 CPC.

I have given anxious consideration to the submissions made by

-3learned counsel for the petitioner and gone through the impugned order. Admittedly, in the application moved by respondent No.1 under Order 7 Rule 11 CPC the factum of sale of suit property by him to respondent No.2 - Jagjit Singh was disclosed. It is also not disputed that thereafter, the petitioner had moved an application to implead respondent No.2 as a necessary party along with another application under Order 7 Rule 17 CPC. Admittedly, the trial Court without deciding the aforementioned applications, decreed the suit of the petitioner ex parte without taking into consideration the consequences of not deciding the aforesaid applications inasmuch as before deciding the suit finally, applicant Jagjit Singh had definitely to be impleaded as defendant No.

2 as the petitioner herself had chosen so by moving an application under Order 1 Rule 10 read with Section 151 CPC. The trial Court in para No.5 in its impugned order has observed as under: - "........The above said judgments are fully applicable in the present case, because the factual position of the present case shows that the plaintiff/respondent has played fraud with the Courts as well as with the present applicant, because original suit has been file don 03.03.2011 by challenging the sale deed dated 05.01.2011 executed by Girdhari Lal, original defendant in favour original plaintiff Nirmala Devi. Thereafter original defendant Girdhari Lal was proceeded against exparte vide order dated 18.04.2011. On 25.05.2011 the case was fixed for filing reply of the application for setting aside exparte proceedings. But Ld.

Counsel for the plaintiff got recorded his statement that he has no objection if the said exparte order is set aside. So on the same date i.e. 25.02.2011 the exparte proceedings against original defendant Girdhari Lal was set aside subject to costs of Rs.1000/-. Then the case was fixed for filing written statement and reply of the said application.

-4off the defence of the defendant along with application under Order 6 rule 17 read with Section 1 rule 10 read with Section 151 CPC for impleading the present applicant Jagjit Singh as defendant No.2 in the original case by alleging that the defendant No.1 has executed sale deed dated 15.02.2011 in favour of Jagjit Singh. It is important to note that the original sale deed dated 15.02.2011 executed by defendant no.1 in favour of plaintiff has been challenged and the present suit was filed on 03.03.3011 while infact, the plaintiff was in knowledge regarding execution of sale deed dated 15.02.2011 by defendant no.2 in favour of Jagjit Singh present applicant. In spite of that the sale deed dated 15.02.2011 in favour of present applicant has not been challenged.

It is well settled law that once any party becomes owner of any property on the basis of any sale deed, then any party on the basis of sale deed in their favour executed another sale deed in favour of any person, then another person comes into the shoes of first person and if the plaintiff is fully aware about the setting up of the present application in the shoes of original defendant Girdhari Lal on the basis of sale deed dated 15.02.2011, then why he has not been arrayed as party in this case. So this clearly shows that the plaintiff in order to indirectly challenged the sale deed dated 15.02.2011 in favour of present applicant to get exparte decree dated 09.12.2011 by declaring the sale deed dated 15.02.2011 being null and void.

Surprisingly during the pendency of that case, the original defendant Girdhari Lal was also proceeded against exparte vide order dated 09.12.2011. So this also shows that the defendant took sale consideration from the plaintiff and then he executed sale deed in favour of original applicant Jagjit Singh and he also got the sale consideration from defendant No.2 and thereafter he fled away from the course of law. On the other hand, the plaintiff/respondent in spite of having knowledge regarding execution of sale deed dated 15.02.

-5respondent/plaintiff has intentionally not impleaded Jagjit Singh in the original case. So once the defendant no.2 becomes owner of property before execution of original suit on 03.03.2011 by the respondent/plaintiff, then he becomes entitled to get the fruits of his sale deed dated 15.02.2011. So in view of factual position of the present case as well as law laid down by Hon'ble Supreme Court of India, this Court is of the opinion that the present application under Order 9 rule 13 CPC is liable to be allowed, hence same is allowed and exparte judgment and decree dated 09.12.2014 is set aside. No to come upon 04.05.2017 for filing amended head note as well as written statement by the applicant Jagjit Singh." Learned counsel for the petitioner has not been able to rebut any of the findings recorded above by the trial Court. In view of the discussion above, I do not find any illegality or perversity in the impugned order. As such the present petition fails and the same is hereby dismissed.

(Ramendra Jain) Judge July 06, 2017 R.S.

Whether speaking/reasoned Yes/No Whether reportable Yes/No.