High Court of Punjab and Haryana, Chandigarh
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Rajbala & Anr. v. Bohat Ram & Ors. - CR-1734-2006  RD-P&H 2639 (26 April 2006)
In the High Court of Punjab & Haryana at Chandigarh.
Date of decision:28.3.2006.
Rajbala and another.
Bohat Ram and others.
Coram: Hon'ble Mr. Justice S.N. Aggarwal.
Present: Mr.D.S.Nirban Advocate for the petitioners.
S. N. Aggarwal, J.
The petitioners along with Dharampal, proforma respondent No.25 filed an application under Order 9 Rule 13 read with Section 151 C.P.C for setting aside the judgment and decree dated 15.1.1988. The plea taken was that Rajbala petitioner was a minor. Her guardian was not appointed and her interest was not safeguarded while Bimla petitioner and Dharampal (respondent No.25) were not properly served. It was further pleaded that although the decree was passed on 15.1.1988 yet they had filed an application under Order 9 Rule 13 CPC in 1993 i.e. from the date of knowledge.
The learned trial Court observed that in the said civil suit titled Raj Kumar etc. Versus Tota Ram etc. (civil suit No.384 of 1985), Rajbala Civil Revision No.1734 of 2006.
petitioner was impleaded as defendant No.4. Since she was minor, she was represented by her mother Sarvan as guardian. Dharampal and Bimla were impleaded as defendant Nos.6 and 8. Both of them were adults. Sarvan, mother of Rajbala was also impleaded individually as defendant No.5.
Rajbala petitioner was served for 15.11.1984. Her brother Ami Lal (defendant No.2 in the suit) had appeared in the Court on behalf of Rajbala minor also while Sarvan, natural guardian and mother of Rajbala was proceeded against ex parte. Ami Lal had common interest with his younger sister Rajbala petitioner. He had appeared in the Court and executed power of attorney in favour of Rohtash Singh Advocate not only on his behalf but also on behalf of his younger sister Rajbala petitioner who was minor. Ami Lal, being brother of Rajbala appeared as her guardian.
So far as Bimla petitioner and Dharampal (respondent No.25) are concerned, they were served by beat of drum. Earlier to that, summons on their behalf were accepted by their brother Ami Lal. Therefore, they were also properly served. Although it is pleaded that Bimla was also minor but the trial Court has held that no evidence has been led to prove that she was minor. Moreover, it is the case of Bimla herself that she was married and, therefore, she was not properly served. It also shows that since she was married, she was not a minor. It was held by the trial Court that both Bimla and Dharampal were served by beat of drum and were proceeded against ex parte.
Not only that, Ami Lal had filed an appeal against the judgment dated 15.1.1988 not only on his behalf but on behalf of Rajbala minor also.
Her mother Sarvan had also filed an appeal against the said judgment. The said appeal was dismissed. They had preferred Regular Second Appeal in Civil Revision No.1734 of 2006.
this Court which was also dismissed by this Court. Since the judgment dated 15.1.1988 had merged in the judgment passed by this Court, therefore, the application under Order 9 Rule 13 CPC was not maintainable.
Application filed under Order 9 Rule 13 CPC was also held to be not within limitation.Accordingly, the said application was dismissed by the learned trial Court vide order dated 28.8.2002. An appeal was filed against this order. The said appeal was also dismissed by the learned Lower Appellate Court vide judgment dated 8.12.2005 and the findings of the learned trial Court were up-held.
The submission of learned counsel for the petitioners was that Rajbala was admittedly a minor. She was not represented through a guardian nor any Court guardian was appointed. Therefore, the interest of the minor was not safeguarded. Reliance was placed on the Division Bench judgment of this Court reported as Gurpreet Singh v.Chatterbhuj Goel, AIR 1992 Punjab and Haryana 95 and on the Single Bench judgment of this Court reported as Jagjit Singh Versus Harijnder Singh and others, 2002(3) Civil Court Cases 174 (P&H). I have gone through the facts of this case as also judgments relied upon by the learned counsel for the petitioners. The facts of the reported judgments are entirely different and are not applicable to the facts of the present case. As discussed by the learned trial Court, Rajbala minor was represented through her brother Ami Lal who was her natural guardian and had no interest adverse to the interest of minor Rajbala. Bimla petitioner was not minor. She was properly served and proceeded against ex parte.
For the reasons discussed above, I find no merit in this petition Civil Revision No.1734 of 2006.
and the same is dismissed.
March 28,2006. ( S. N. Aggarwal )
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