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GANDA SINGH & Anr v. KARNAIL KAUR & Anr - CR-4278-2005 [2006] RD-P&H 71 (9 January 2006)




Date of Decision:- 23.1.2006

1. C.R. No.4278 of 2005 Ganda Singh and another Vs. Karnail Kaur and another

2. C.R. No.4553 of 2005 Gagandeep Singh Vs. Karnail Kaur and others CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
Present:- Shri Harsh Aggarwal, Advocate for the petitioners.

Shri Arun Palli, Advocate for the respondents.


This order will dispose of two revision petitions bearing No.4278 of 2005 and 4553 of 2005 arising out of same impugned order.

Facts have been taken from C.R. No.4278 of 2005.

Respondent- Karnail Kaur filed a suit for permanent injunction with a prayer that the petitioners along with respondent No.2 be restrained from interfering in her possession of the property in dispute, description of which is given in her plaint.

Records reveal that the suit was filed on 23.5.2003. Notice was issued for 3.6.2003. Petitioners remained unserved and they were ordered to be served through proclamation in the Village for 17.7.2003. They failed to appear and consequently ordered to be proceeded ex parte vide order dated 13.10.2003. Immediately, thereafter, in the month of November, the petitioners moved application for recalling of that order. Their C.R. No.4278 of 2005 etc. [2]

application was dismissed vide order under challenge.

This Court feels that the gap between the date when suit was filed and when the petitioners were ordered to be proceeded ex parte is not too much and furthermore even within a month, petitioners moved an application for setting aside the ex parte order. Under these circumstances, Court below as required to take a lenient view. Proceedings were at the initial stage, as such, it was desirable that the trial Court should have recalled the order under challenge vide which the petitioners were proceeded ex parte rather than spending more than two years in deciding their application for the said purpose.

Be that as it may, this Courts feels that Rules and procedure are handmaid of justice to enhance the same and not to subvert it.

Their Lordships of Supreme Court in Sardar Amarjit Singh Kalra (dead) by L.Rs. And others v. Parmod Gupta (Smt.) dead) by L.Rs.

And others (2003) 3 S.C.C. 272, in para 26 of the judgment had opined as under:-

"Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice."

View extracted above, was reiterated by their Lordships of Supreme Court in N.Balajit v. Virendra Singh and others, (2004) 8 Supreme C.R. No.4278 of 2005 etc. [3]

Court Cases 312, wherein after noting ratio of the judgment, referred to above, in para 10 of the judgment, it was observed that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice.

In view of ratio of the judgment referred to above and facts of the present case, this revision petition alongwith the connected revision petition are allowed. Orders under challenge are set aside. Consequently, orders vide which the petitioners of both revision petitions were ordered to be proceeded ex parte stands recalled. Petitioners are directed to file their written statement before the trial Court within 30 days from today failing which both the revision petitions shall be deemed to have been dismissed.

Order passed is subject to payment of costs of Rs.5,000/- in each case.

Costs be paid before the trial Court within one month from today.

Keeping in view the facts and circumstances of both cases, trial Court is directed to expedite the disposal of the pending suits.

January 23, 2006 ( JASBIR SINGH )

renu JUDGE


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