Decided on December 03,2020

SHAM SUNDER Respondents


JYOTSNA REWAL DUA,J. - (1.)An application moved by one Shri Subhash Chand Puri (original proforma defendant No. 7) under Order 1 Rule 10(2) read with Section 151 of Code of Civil Procedure for transposing him as co-plaintiff has been allowed by the learned trial Court vide order dated 12.6.2019. Aggrieved defendant No. 1 (Surinder Kumar) has preferred instant petition under Article 227 of Constitution of India.
(2.)From the record of civil suit, it becomes apparent that 'the memo of parties' of the present petition has not been drawn correctly. The changes made before the learned trial Court in 'the memo of parties' have not been properly incorporated in the instant petition. Be that as it may. Perusal of record and the impugned order reflect that the dispute raised in present petition only concerns Surinder Kumar (original defendant No. 1), Sham Sunder (original plaintiff) and Subhash Chand Puri (original defendant No. 7). In fact, for deciding the application culminating in the impugned order, the notice was confined by the learned trial Court only to these parties. Therefore, irrespective of the fact that 'memo of parties' has not been drawn correctly and some of the respondents (herein) are not served, yet considering the narrow compass of controversy raised in the instant petition coupled with the fact that original civil suit was filed almost 31 years ago, which has not progressed after 16.10.2019 due to requisitioning of its record in the instant petition, the requirement of service of unserved respondents is dispensed with. Therefore, CMP No. 11211 of 2020, CMP(M) No. 724 of 2020 and CMP(M) No. 725 of 2020 are not being considered in the interest of justice and stand disposed of accordingly. The parties affected and interested in the order impugned herein, are represented by their learned Counsel. Considering all these aspects, the matter is heard today with the consent of learned Counsel for the parties affected by the impugned order.
(3.)A civil suit bearing No. 180/1991 was filed by S/Shri Sham Sunder and Jaram Singh in the learned trial Court seeking possession of land comprised in Khata No. 14 min, Khatauni No. 21 min, Khasra No. 747/1, measuring 0-00-44(2 marlas) out of Khasra No. 747 measuring 0-01-50 HM, situated in Tika and Mauza Jassur, Tehsil Nurpur, District Kangra. In the civil suit, petitioner-Shri Subhash Chand Puri was arrayed as proforma defendant No. 7. Defendants No. 3 to 7 admitted the claim of plaintiffs. Defendant No. 1 prayed for dismissal of suit. The suit was decreed ex-parte in favour of plaintiffs vide judgment and decree dated 25.10.1997. Defendant No. 1 (petitioner herein) was to demolish the shed constructed by him over the foundations laid by plaintiff No. 1. Plaintiff Sham Sunder thereafter filed an execution petition No. 8/2006 for possession of half share of suit land. Subsequently defendant No. 1 moved an application under Order 9 Rule 13 CPC for setting aside ex-parte decree dated 25.10.1997. The application was dismissed by the learned trial Court on 24.1.2009 for want of prosecution.

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