DR. SHIVDEV SINGH GREWAL THROUGH DR. AMRIK SINGH SANDHU versus HARGURBACHAN SINGH GREWAL

Citation: [1996] SUPP. 7 S.C.R. 224 · Decided: 07-10-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
DR. SHIVDEV SINGH GREWAL THROUGH 
DR. AMRIK SINGH SANDHU 
v. 
HARGUR3ACHAN SINGH GREWAL 
OCTOBER 7, 1996 
(K. RAMASWAMY AND G.B. PATTANAIK, JJ.) 
Code of Civil Procedure, 1908 : 
C 
Order IX, Rule 13--Application for setting aside ex-parte decree--
Limitation-Suit for declaration aside of title and for possession-Defendant 
residing in Malaysit~After one month of issue of summons suit ordered to 
proceed ex-parte-Expmte decree passed-Defendant filing application for 
setting aside ex-pmte decree, with a delay of 11 days---Cowts below rejecting 
the application-'-lfeld, the trial cowt should have given sufficient time so that 
D the defendant would have an opportunity to contest the suit-In the cir-
cumstances it would be legitimate to conclude that notice might not have been 
served on him within the time-fvloreover, the application was filed through 
power of attomey-Dismissal of the application set aside--&:-parte decree 
also set aside--M atter would be adjudicated on merits. 
E 
F 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13242 of 
1996. 
From the Judgment and Order dated 25.7.94 of the Punjab & 
Haryana High Court in C.R. No. 311 of 1994. 
R.K. Jain Ms. Abha R. Sharma and Neeraj Jain for the Appellant. 
P.P. Rao, Sanjay Bansal and G.K. Bansal for the Respondent. 
The following Order of the Court was delivered : 
G 
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. 
H It is rather unfortunate that the brothers have to have a legal fight in 
224 
t 
S.S. GREWAL v. H.S. GREW AL 
225 
respect of the property. We are not expressing any opinion on merits in A 
the matter. Suffice it to state that the respondent filed Civil Suit No. 178/85 
t 
on the file of the Trial Court for a declaration of title to the property as . 
< 
an owner and for po_ssession thereof. The said suit came to 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 B 
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, t!J!s appeal by special c 
leave. 
In is not in dispute that the tenant, Dr. Amrik Singh Sandhu filed an 
application under Section 13 of the East Punjab Urban Rent. Restriction 
Act against the respondent on August 22, 1986 wherein he had mentioned D 
l 
that the suit filed by the respondent came to be decreed on July 22, 1986. 
..., 
This fact had come to the knowledg~ of the respondent on November 13, 
1986 and immediately action was t~ken by seeking to setting aside the 
ex-parte decree obtained by the respondent. Admittedly, the application 
under Order IX, 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. E 
The question is: whether the appellant has shown sufficient cause for not 
filing the application to set aside the ex-parte decree? 
. 
The admitted position is tfo1t the appellant is residing in Malaysia. 
He was set ex-parte after one month after summons was sent in the suit to F 
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 sufficient 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 · G 
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 H 
226 
SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R. 
A the suit or would remain ex-parte and would not allow ex-parte decl
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