Gokal Chand Mittal, J. - (1.) On 20-12-1982 Jit Singh filed a suit against Rajinder Nath Anand for specific performance of agreement of sale dated 12-11-1980 in respect of House No. 3099, Sector 27-D, Chandigarh, Rs. 36,000.00 were stated to have been paid partly in cash and partly by cheque and the balance of Rs. 1,50,000.00 were to be paid before the Sub-Registrar at the time of registration. According to the plaintiff's case he was ready and wiling to perform his part of the contract whereas the defendant failed to do so and hence the suit. Notice of the suit is alleged to have gone to the defendant for 4-2-1983. The dependent was not served and it was ordered that he be summoned for 9-3-1983. On 9-3-1983 the registered cover came back with the report 'refused' and the trial Court ordered ex parte proceedings against the defendant. On ex parte evidence the suit was decreed on 2-9-1983. In spite of the decree, the plaintiff decree-holder kept quiet. In April, 1984, the defendant died on account of his heart trouble and paralysis with which he was suffering since 1981. After his death, in Nov., 1984, the plaintiff decree-holder got the summonses issued to the legal representatives of the deceased for execution of the decree. The legal representatives, who are the widow and minor children of the deceased, got the summonses on 21-11-1984 and from that they got the clue of ex parte decree and after inspecting the records, filed an application on 26-11-1984 for setting aside the ex parte decree on the plea that the defendant was never served the never refused to accept service and the reports made by the postman were false. It was highlighted that the defendant was a heart patient and was suffering from paralysis and no registered letter was ever presented to him which he may have refused. The application was tried and by order dated 1-2-1986 it was dismissed after recording finding that no case for setting aside the ex parte decree was made out and the application was time barred. This is appeal by the widow and minor children of the defendant against whom ex parte decree for specific performance of contract was obtained.
(2.) After hearing the learned counsel for the parties and on perusal of the record I am of the view that this appeal deserves to succeed. The appellants have produced Dr. K.L. Nayar, Incharge Government Chest Clinic, Sector 21, Chandigarh (A.W. 1) and Dr. B.R. Verma retired Director, Health Services, Union Territory, Chandigarh (A.W. 4) to support that since Sept., 1981, the deceased was suffering from heart trouble and paralysis. According to Dr. Verma the deceased was bed ridden and was of unstable mind. Although he had recovered slightly, but he always talked irrelevant and was emotional and could utter only a few words and was of unsound mind. The impression left in my mind is that the plaintiff knew that the defendant was not to live long and that is why he dragged the litigation from Dec., 1982 to Oct., 1984, in spite of the fact that in March, 1983, he obtained an order for ex parte proceedings and got ex parte decree in Sept., 1983. For about a year he took no steps and it is only long after when the defendant died that he started proceeding for execution against his legal representatives.
(3.) The subject matter of dispute in the suit was not of a small nature and related to an agreement of sale of a house worth about Rs. 1,86000.00 according to the plaintiff's case. The record shows that the first notice bears the endorsement of refusal and similar is the endorsement on the second notice. The locality in which the house is situate is a thickly populated locality and on both sides the house have common walls. In spite of that no neighbour or any other witness was called by the postman to support the endorsement of refusal. The postman was produced by the plaintiff who appeared as D.H.W.2. According to his examination-in-chief he knew the defendant but when cross-examined, he could not tell if he had delivered any other letter to the defendant except the registered covers relating to the suit. He has not been able to show as to how he knew the defendant. The following cross-examination deserves to be reproduced:- "I gave a ring and he can outside and made the refusal of the letter. I did not call any neighbour. Nor any other member of the household. I cannot tell orally when I went to that house earlier before the delivery of letter in question...... It is incorrect to suggest that Rajinder Nath was not well. It is incorrect that he was not able to speak or move. The report is correct. I did not know that Jit Singh and it is incorrect that made the report at his instance and that this report is false.";