Decided on December 23,1991

Swami Pragya Nand Appellant
Ram Swaroop Kapur Respondents


KAMLESH SHARMA, J. - (1.) DEFENDANT No. 2 Applicant, Sh. Ravinder Kapur has moved this application under Order 9 Rule 7, C, P C for setting aside the ex -parte proceedings ordered against him on 16 -12 -1981. This suit and suit No. 40 of 1981 have been consolidated with suit No. 24 of 1981 vide order dated 17 -6 - 1985, inter alia, on the grounds that these pertain to the same property. At the time of consolidation all the three suits were at argument 'sstage. The Applicant is proforma Defendant No. 7 in Civil Suit No. 24 of 1981 but he is being proceeded ex -parte therein. He has not applied for setting aside ex -parte proceedings in that suit. He is not a party in the third suit, Civil Suit No. 40 of 1981.
(2.) AS stated in the application, the Applicant acquired knowledge of the pendency of the suit on 26 - -1991 from Sh. Gian Chand Gupta, Advocate, Shimla, when he, alongwith his brother Ram Sarup Kapur, attended his office in connection with R.F As. No. 67 and 79 of 1990 in which he is impleaded as proforma Respondent. According to the Applicant, he had not visited Shimla from the year 1977 to 26th March, lv9l. He further states that on inspection of the suit file, he come to know that he was proceeded ex -parte on 14 -12 -1981 after publication of notice in Punjab Kesri and no personal service was effected on him. The address given in the publication notice as well as on the Registered cover, which was received undelivered, was also wrong. The Applicant had never lived at the address given in the publication notice as well as the registered cover According to the Applicant, his last known address was given in the sale -deed executed in favour of the Plaintiff by him and others. But summons were neither published nor sent on that address intentionally. He further alleges that if no opportunity is given to him to defend the suit, he will not be able to counter the allegations made therein that he had agreed to sell his share in the suit property and had authorised his brother to enter into agreement with the Plaintiffs on his behalf. The averments made in the application are supported by an affidavit of the Applicant. 3 The Plaintiffs in their reply have taken preliminary objections of limitation, no good and sufficient ground for setting aside the ex -parte order and maintainability of the application besides denying the allegations on merits. According to them, since the Applicant could not be served by ordinary mode of service and there was every likelihood of his evading service, the order of service by publication was passed by the Court The Plaintiffs have alleged that since the suit has been consolidated with other two suits and if ex -parte proceedings are set aside in the present suit, the trial in all the suits will be held denovo Therefore, the present application is not maintainable. They have specifically denied that the Applicant came to know of the pendency of the suit on 26 -3 -1991 as he had been coming to Shimla and his brother, Defendant No. 1, had appeared initially in the suit. The application has been moved at the fag end of the suit at the instance of other Defendants to fill in the lacunae in the case.
(3.) IN order to decide the controversy between the parties, the following issues were framed and the parties were directed to adduce evidence thereon - 1. Whether there is sufficient cause to set aside the ex -parte proceedings against Ravinder Kapur, Defendant No. 2? O.P. Applicant. 2. Relief. ;

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