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Judgment
Leave granted.
We have heard learned Counsel on both sides. This appeal arises from the order of the learned single judge of the Punjab & Haryana High Court made on July 25, 1994 in C.R. No. 311/94. It is rather unfortunate that the brothers have to have a legal fight in respect of the property. We are not expressing any opinion on merits in the matter. Suffice it to state that the Respondent filed civil Suit No. 178/85 on the file of the trial court for a declaration of title to the property as an owner and for possession thereof. The said suit came of be filed on May 27, 1985. Pursuant to service of summons, on his sending through post his written arguments in the matter from Malaysia on November 11, 1985, the learned Sub-Judge, Ludhiana, dismissed the suit. It would appear that subsequently the Respondent filed the present suit for declaration of his title and that suit came to be decreed ex-parte on July 22, 1986. The Appellant filed an application on December 24, 1986 to set aside the ex-parte decree which was dismissed. On appeal, it was confirmed and in revision, the High Court declined to interfere. Thus, this appeal by Special Leave.
It is not in dispute that the tenant, Dr. Amrik Singh Sandhu filed an application u/s 13 of the East Punjab Urban Rent Restriction Act against the Respondent on August 22, 1986 wherein he had mentioned that the suit filed by the Respondent came to be decreed on July 22, 1986. This fact had come to the knowledge of the Respondent on November 13, 1986 and immediately action was taken by seeking to setting aside the ex-parte decree obtained by the Respondent. Admittedly, the application under Order 9, Rule 13, CPC came to be filed on December 24, 1986 with delay of 11 days only. There was hardly any delay in filing the application. cThe question is: whether the Appellant has shown sufficient ause for not filing the application to set aside the ex-parte decree?
The admitted position is that the Appellant is residing in Malaysia. He was set ex-parte after one month after summons was sent in the suit to Malaysia. It is hardly expected to get summon served in Malaysia within such a short period. The trial Court followed grammar of law but the Court would have given sufficiently long time so that the Appellant would have an opportunity to contest the suit. One important fact that cannot be lost sight of is that in matters relating to the ownership of the property, each party claims to be the owner of the property. On an earlier occasion, when an attempt was made by the Respondent by seeking declaration of title and when the summons were served on him, immediately, the Appellant had sent his written statement contesting his claim. He would not stand to gain by remaining ex-parte. It would be clear from the above that normally if one has received the notice, no one can expect that he would not contest the suit or would remain ex-parte and would not allow exports declaration of title to be given against him. Under these circumstances, it would be legitimate to conclude that notice might not have been served on him within the time. On coming to know of the ex-parte decree obtained by the Respondent against him on November 13, 1986, the Appellant filed the application on December 24, 1986 through his power of Attorney. One would expect that unless the Attorney-holder communicated to the Appellant and got his instructions to file the application, it would not be possible for him to proceed with the matter. Under these circumstances, the approach adopted by the Courts below is clearly unjustified. The appeal is accordingly allowed. The dismissal of the application under Order 9, Rule 13, CPC stands set aside. The ex-parte decree is set aside. It is open to the parties to have the matter adjudicated on merits. No costs.