V.K.BALI, J. - (1.) SHAKUNTLA Yadav widow of Lal Singh, the original owner of part of the land in dispute along with her major amd minor sons, namely, Bharat Singh Yadav, Vineet Yadav and Sharad Yadav has taken a strong exception to a decree dated 29.10.1990, said to have been passed by Shri A.D. Gaur, Sub-Judge IIIrd Class, Gurgaon in case No. 1588 of 1990 vide which the land, fully described in paras 1 and 2 of the plaint, was transferred in favour of Yadvinder Singh son of Randhir Singh. The total land described in paras 1 and 2 measuring 116 kanals 11 marlas, is detailed below : "22 Kanals 2 marlas situated within the revenue estate of village Sarhaul, Tehsil and District Gurgaon entered in Rect. No. 18, Killa Nos. 1(5-16), 2(1- 9), Rect. No. 23, Killa No. 8/1(0-10), Rect. No. 19, Killa No. 6/1/2(2-11), Rect. No. 23, Killa Nos. 8/2(0-1), 9/2(5-18), 10/1(2-0), 12/2(2-5) and 13/1(1-12). Plaintiffs 1 to 4 inherited this land in equal shares (1/4th each) on demise of Lal Singh, who breathed his last on January 25, 1991. 41 Kanals 2 marlas entered in Rect.. No. 18, Killa Nos. 8(4-16), 9(7.18), 10(8-0), 13/2(6-4), 27(8-0), 18/1(6-4) owned by plaintiff Shakuntla Yadav. 18 Kanals 19 marlas entered in Rect. No. 17, Killa Nos. 11(0-5), 20(7-10). Rect. No. 18, Killa Nos. 15(3-4), 16(8-0) owned by Bharat Singh; 34 Kanals 8 marlas entered in Rect. No. 17, Killa No. 21/1(4-4), Rect. No. 18, Killa No. 25(8-0), Rect. No. 35, Killa Nos. 5(8-0), 6/1(1-11), Rect. No. 36, Killa No. 1(8-0) and 10/1(4-13), owned by Vineet Yadav."
(2.) THE suit for declaration that the decree obtained by defendant Yadvinder Singh was an outcome of fraud and deceit on the grounds that shall be fully detailed later, came to be instituted before the Vacation Judge on July 6, 1991. Accompanied with the suit was an application for entertaining the suit during vacation. It requires to be mentioned here that during summer vacation in the trial courts, insofar as civil work is concerned, the same comes to a grinding halt. There is no vacation Bench to deal with the regular civil suits and only emergent criminal work is transacted. It was, inter alia, mentioned in the application aforesaid that on the basis of fraudulent decree dated October, 29, 1990, the defendant was threatening to dispossess the plaintiffs. He was also trying to lease out the land in dispute and to create encumbrances over it and was even planning to alienate the same to the third parties. In case the defendant was to succeed in his endeavour to alienate the property, the plaintiffs would suffer an irreparable loss. The plaintiffs during the lis, sought for an injunction against the defendant as well and for that precise reason maintained an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. It appears that the Additional District Judge entertained the suit as a vacation Judge considering it to be an urgent matter as would be clear from his interim order dated July 6, 1991 which reads thus : "This suit is entertained during vacation as it involves urgent matter. Notice be issued to defendant for 5.8.1991 on process fee, copies. File be put up on that date before the learned Senior Sub Judge, Gurgaon. Heard on the stay application. In view of allegations and documents on record, the defendant is restrained from alienating the suit property in any manner and from mortgaging or leasing out the same and from creating any encumbrances over it and both the parties are also directed to maintain status quo regarding possession of the suit property till further orders. Ex-parte injunction has been granted as the very purpose of filing the suit would be defeated if prior notice is issued to the defendant. Notice of stay application and stay order be issued to be defendant for the date fixed on process fee, copies. Compliance of Order 39 Rule 3 CPC be also made". On the adjourned date, i.e., August 5, 1991, the suit was registered by the Sub Judge 1st Class, and adjourned to September 16, 1991. On the adjourned date, as none appeared on behalf of the defendants despite service, he was proceeded ex parte and the case was adjourned to October 12, 1991. The matter, however, could not be taken up on October 12, 1991 as the Presiding Officer was on leave. The order proceeding ex parte against the defendant was, however set aside being not Opposed by the counsel for the plaintiffs subject to payment of Rs. 30/- as costs vide order dated October 25, 1991. Meanwhile, learned Sub Judge Ist Class, Gurgaon, before whom application under Order 39 Rules 1 an 2 read with Section 151 of the Code of Civil Procedure came up for hearing, declined stay on October 29, 1992. Constrained, the plaintiffs carried an appeal against the order declining stay which came ultimately for decision before Shri A.S. Garg, District Judge, Gurgaon. The appeal preferred by the plaintiffs was dismissed by the District Judge on Jaunuary 23, 1993. Still being aggrieved, the plaintiffs carried a civil revision against the orders passed by the Sub Judge and on January 27, 1993 obtained stay with regard to alienation of the land in dispute. Further description of the progress of the civil suit shall be detailed later.
(3.) AT a stage when Yadvinder Singh defendant in the civil suit referred to above as per the case of the plaintiffs with the help of government functionaries had sold or leased out part of the land and on the basis of the said sale deeds and lease deeds, the revenue officials were out to mutate the land in favour of the third parties, the plaintiffs filed Civil Writ Petition No. 2377 of 1993 in this court on March 4, 1993. It was, inter alia, pleaded in the writ aforesaid that the copy of the order of the District Judge dismissing the appeal of the plaintiffs arising from the order passed by the Sub Judge declining stay to the plaintiffs was made available and the plaintiffs approached this Court on January 27, 1993 and obtained permission of this Court for getting their Civil Revision No. 339 of 1993 fixed up on the same day before an Hon'ble Judge of this Court and after hearing the arguments, stay restraining respondents from alienating the property or creating an encumbrance over the property in dispute was granted. It has also been pleaded that the case file culminating into the impugned decree had been got misplaced by the defendant Yadvinder Singh. The counsel representing the respondents, who was watching the proceedings of the civil revision, appeared on January 28, 1993 was holiday in Haryana and on January 29, 1993 plaintiffs presented a copy of the stay at 9 a.m. to the Tehsildar-cum-Sub Registrar, Gurgaon and also to Patwari of the area. Despite that, Yadvinder Singh got the sale deeds of the property in dispute registered. These sale deeds were, however, got ante dated even though registered on 29th the date put on the sale deeds was January 27, 1993. As mentioned above, these were the circumstances that compelled the plaintiffs to file the writ petition aforesaid. The matter came up for hearing before the Division Bench of this court on March 5, 1993 when notice of motion was issued for March 19, 1993. Plaintiffs were asked to serve the respondents by Dasti Process. Status quo regarding possession over the property in dispute was ordered to be maintained. The matter was thereafter adjourned from time to time and after records of the case were complete, it came up for hearing before a Division Bench of this Court on October 11, 1993 when following order was passed : "On going through the material on record, we consider it imperative to have before us, respondent No. 4. This respondent was served but he has chosen not to appear. In order to ensure his presence, we direct that bailable warrants be issued in the sum of Rs. 10,000/- to secure his presence for the next date of hearing. Mr. Yadav, DAG, Haryana, is directed to ensure that these warrants are executed before that date. We further direct that no alienation of the land be made until further orders, and the alienations already made, after obtaining the impugned decree of the Civil Court, of October 29, 1990, shall not be operative till further orders. Let the record of the case of suit 1588/90 pending in the court of Sub Judge III Class, Gurgaon, be also made available before us. To come up for further proceedings on October 21, 1993." ;