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Judgment
S.K. Gupta, Judge
This petition is aimed at setting aside the ex parte order dated 20-11-2000 passed by this Court (Hon'ble Mr. Justice T.S. Doabia) in Revision
Petition No. 73/2000. By the aforesaid order, this court set aside the order passed by District Judge, Jammu whereby M/s Rockland Distilleries
Pvt. Ltd. was held liable to pay Rs. 1,63,808.07 on account of liability prior to 01-04-1988 and not formed a part of the settlement, and ordered
the file would go back to the Trial court directing to take the necessary steps to execute the order passed by this Court.
Facts extracted from the aforesaid petition and relevant for its disposal in resume may be noticed. M/s Rockland Distilleries Pvt. Ltd., a
Company registered under the Companies Act, 1956, had borrowed a loan of Rs. l,33,000/-from Jammu and Kashmir State Financial corporation
between the period commencing from 02-05-1974 to 31-01-1975. the Company, however could hot pay the loan and became defaulter. This led
the J&K State financial corporation to take out proceedings in recovery of the loan against the Company, its chairman and Managing Director. It
was during the currency of the proceedings that its Chairman, Janki Devi died on 17-08-1979 and its Managing Director, Hans Raj Kohli, who
remained sick for about a decade, also died on 27-05-1990. The Unit became sick and ultimately was closed in 1984-85 the shares of the
Company held by Chairman and Managing Director, however, devolved on Parveen Kohli S/o Hans Raj Kohli and grandson of Janki Devi. The
majority of the shares however were sold by Parveen Kohli, as the liability of the company had enormously increased on account of the Unit
having become sick. It is also stated that Rakesh Chander Dubey and Rita Sharma respondent 2 and 3, who purchased the shares of the
Company, became its directors and made an endeavor to revive the Unit by making huge investments. A request was also made by them through
Parveen Kohli, the heir of the deceased-managing Director and also the Chairman of the said Company to the respondents for settlement of the
loan amount. On a one time settlement Scheme floated by the J&K Financial Corporation and in pursuant of a letter dated 17-02-1998 to the
petitioners, asked for making a payment of Rs. 6,29,439.23. It is further stated that on the deposit of Rs. 6,30,000/- by the petitioners, the claim
of the respondent stood fully and finally settled. This compromise, however, reached between the parties before the District Judge during the
recovery proceedings. The respondent J&K State Financial Corporation, however, raised a plea in an application before the District Judge that the
amount calculated did not include the interest component amounting to Rs. 1,54,3364 and demanded Rs. 1,63,808.07. It was further asserted that
the amount claimed did not form the part of the settlement in full and final. The District Judge, however, did not accept the contention of the
respondent J&K State Financial Corporation and rejected the same in holding that after the full and final settlement of the claim of the respondent,
there remains no liability on the petitioners in respect of any payment to be made to the respondent.
Aggrieved by this aforesaid order passed by the district Judge, a revision was preferred before this Court by the JK Financial corporation
against the Company, its Managing Director, Hans Ran Kohli and chairman, Janki Devi, as respondents 2 and 3. The Revision Petition came to be
accepted in quoting the office note that the respondents have been served and nobody has put in appearance on their behalf. This Court allowed
the Revision and held the petitioner company-Rockland distilleries Pvt. Ltd., to pay Rs. 1,63,808.07, as this liability was not a part of the
settlement in passing an ex parte order on 20-11-2000.
Resistance to the petition has been made on a blend of objections, both preliminary and on merit. The preliminary objections relate to the
maintainability of the petition and stated that Court after decision in Revision has become functus officio and the only remedy available to the
petitioners way by way of filing an SLP before the Supreme Court on merits. It is stated that by calculating the amount of interest that accrued to
the amount demanded at the time prior to 01-04-1988 was not added by mistake. It is also stated that there was nothing on record to show that
respondent 2 and 3 died in 1990 and 1979, and the order impugned passed by the Court is on sound basis and does not warrant interference.
I have heard Mr. L.K.Sharma learned counsel appearing for the petitioners, as well as Mr.K.S.Johal learned counsel for the respondent, at
length and also gone through the relevant provision of law touching the controversy in the matter.
An objection has been taken at the threshold by Mr.K.S.Johal learned counsel appearing for the respondent, that this application does not lie. It
is also contended that revision petition has been heard and decided after hearing learned counsel for the respondents therein. There is no provision
in the CPC under which an order passed by this Court on 20-11-2000 can be set aside and the petitioners reheard in the petition. In dispelling the
contention of the learned counsel for the respondent herein, it is submitted by Mr. L.K.Sharma appearing for the petitioners that section 141
covers proceeding in revision, being proceedings in the Court of civil Jurisdiction. It necessarily follows that this application is legally competent
against an order in revision.
It is pertinent to point out that word ""all proceedings"" occurring in Section 141 embrace proceedings of all character, original as well as those
that are not original. The word ""all"" is a comprehensive term and a revision is a proceeding to which section 141 is attracted. The proceeding in
revision being an independent proceeding of a supervisory nature, clearly falls within the purview of expression 'civil proceeding' in section 141
C.P.C and if that be so, an order passed in revision after hearing the ex-parte is obviously subject to recall/cancellation/setting aside within the
embrace of section 141 C.P.C.
The argument contrary of the learned counsel for the respondent has no merit in it and is hereby repelled.
It is, however, not understandable that if revision petition is heard even thought ex-parte no application should be entertained for setting aside
the ex-parte order and rehearing the petitioner, as vouched strenuously by Mr. K.S. Johal appearing for the respondents. If the contention is taken
as correct then the provisions contained in Chapter IX of the C.P.C would become redundant because the matters are heard ex-parte and then
decided in all those cases. As a matter of fact, before any order becomes final, the parties should be heard which is also necessitated by the
principles of natural justice. An order passed expartie will not assume finality unless both the parties are heard in the main contest. If otherwise, the
Court has the power to set aside the order passed ex-parte. Therefore, it is imperative to hear both the parties.
In the present case, if the court has the power to set aside the order passed ex-parte, having regard to the good and sufficient ground shown
for setting aside the same, the Court is bound to hear both the parties before the order becomes conclusive and effective. There is, in my opinion,
no merit in the preliminary objection raised by the respondent pertaining to the maintainability of the petition. On merits, it is clearly gatherable from
the record that after the Registry indicated in its note that Process Server has reported that the Firm has closed and respondent 2 & 3 expired and
the service is effected on the son of respondents 2 & 3, the Court after hearing the petitioner (herein the respondent) passed ex-parte order and
settled respondent no.1, M/S Rockland distilleries (P) Ltd., with liability of Rs. 1,63,808.07 in holding that it was not the part of the settlement and
remitted the file to the trial court to take steps for execution of the order.
It is not understandable that when respondents No. 2 & 3, Managing Director & Chairman of the M/s Rockland Distilleries (P) Ltd were reported
to have died and the Company became closed much prior to the filing of the revision petition and the notice stated to have been served upon the
son of respondents no. 2 &3, who was not a party to the revision, could be said to be have been served on their son as indicated in the note of the
Registry, which too escaped the attention of this Court while passing an ex-parte order in the revision. Petitioners no. 2 & 3, who claimed to have
purchased majority of shares of the company, stated to have the Directors of the Company, They further stated to have liquidated the loan amount
in one time settlement scheme by making a payment of Rs. 6,30,000/- in response to the letter received from the J&K State Financial Corporation
for its deposit in full and final settlement of the claim of the said Financial Corporation. It is also stated by the petitioners to have acquired the
knowledge of the passing of the ex-parte order when demand for recovery of the amount was made by the respondent except bare denial for want
of knowledge. In such circumstances, the petition can safely be held to be within time.
After taking conspectus of the facts and circumstances discussed above. I allow the petition and set aside the order passed in the revision
petition. The main revision petition is restored and will be heard on merit on a date to be fixed by the Deputy Registrar. The petition stands
disposed of accordingly along with CMP No. 400/2002.