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2006 DIGILAW 284 (PNJ)

Rajesh Kumar v. Des Raj Arora

2006-02-02

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. This plaintiff has field this petition under Article 227 of the Constitution of India for setting aside the order dated 12.1.2006, passed by Additional District Judge, Sonepat, whereby after setting aside the order dated 15.10.2003, passed by the trial Court, the application under Order 9 Rule 13 C.P.C. filed by the defendants (respondents herein) has been allowed, ex parte judgment and decree dated 20.10.1992 passed by the then Sub Judge, 1st Class in Civil suit No. 241 dated 15.6.1990, titled Rajesh Kumar v. Des Raj and Ors. has been set aside, the said suit has been restored to its original number and a direction has been issued to the trial Court to further proceed with the suit in accordance with law. 2. I have heard the arguments of learned Counsel for the petitioner and have gone through the contents of the petition and the impugned order. 3. In this case, the petitioner filed suit for possession by way of pre-emption on 15.6.1990. In that suit, the respondents were proceeded against ex parte on 2.12.1991 on the basis that the summons were despatched on 25.10.1991, but the registered A.D. Covers had not been received back served or unserved despite the expiry of more than one month. Therefore, in view of the provision of Order 5 Rule 19-A C.P.C., the defendants were deemed to have been duly served and since they had not appeared, they were proceeded against ex parte. Thereafter, the ex parte judgment and decree was passed on 25.10.1991. 4. When the respondents came to know about the aforesaid ex parte judgment and decree, they tiled an application under Order 9 Rule 13 C.P.C. for setting aside the same, which was dismissed by the trial Court while holding that the respondents failed to prove the sufficient ground to set aside the decree and the application was also barred by limitation. 5. The appellate court has set aside the order passed by the trial Court, allowed the application of the respondents and the ex parte judgment and decree has been set aside. The appellate Court has found that service of the respondents was not properly effected and the summons were issued to them on the addresses where they were not residing. It has been further held that the presumption of service under Order 5 Rule 19-A C.P.C. has been wrongly drawn. The appellate Court has found that service of the respondents was not properly effected and the summons were issued to them on the addresses where they were not residing. It has been further held that the presumption of service under Order 5 Rule 19-A C.P.C. has been wrongly drawn. In this regard, the appellate court has observed as under:- 14. In the instant case, the registered covers and the summons were received back undelivered with the report that the addresses given were not correct instead of insisting the party to submit the correct address, the trial court again effected the personal service on the appellants on the same address and in its order dated 2.12.1991 Ex.A16 observed that the registered AD covers have not been received back despite the expiry of more than one month and the appellants are deemed to have been served. The appellants were ordered to be proceeded against ex parte. Admittedly, the respondent repeated the same address on the registered AD cover and thus, it can not be presumed that the appellants were duly served. The presumption made by the learned Lower Court under Order 5 Rule 19A C.P.C. is erroneous. The question of the appellants having residence at the given address did not arise. The reports of the postman dated 1.10.1992 and the reports of the Process Server on 23.8.1991 and 5.6.1991 are material. In all these reports, it has been mentioned that the appellants are not residing on the given address. Regarding the limitation, it has been held that earlier, the respondents were not aware of the ex parte judgment and decree and they filed application for setting aside ex parte judgment and decree after the knowledge of the same. It has been held that the respondents were not present at the time, of sanctioning the mutation in favour of the petitioner and admittedly, they did not withdraw any pre-emption amount and there was no reason for them to appear before the Revenue Officer at the time of sanction of the mutation. It has been further held that the separate application for condoning the delay in filing the application is not necessary and the starting point of limitation for filing the application to set aside the ex parte judgment and decree is from the date of knowledge. It has been further held that the separate application for condoning the delay in filing the application is not necessary and the starting point of limitation for filing the application to set aside the ex parte judgment and decree is from the date of knowledge. Therefore, it has been held that the trial Court has wrongly held that the application filed by the respondents is barred by limitation. 6 Counsel for the petitioner submits that in the application for setting aside the ex parte judgment and decree on the ground of non-service of summons, the fraud has not been alleged. Therefore, in absence of any allegation of fraud and misrepresentation, an ex parte judgment and decree on the bare plea of non-service cannot be set aside. In this regard, learned Counsel has relied upon a decision of this Court in Rai Jasbir Singh v. Balwant Singh and Ors. (2006-1) 142 P.L.R. 339. He further submits that the appellate Court has also erred in law while holding that the application filed by the respondents is not barred by limitation. 7. In my opinion, both the aforesaid submissions of counsel for the petitioner are not tenable. In this case, a categoric finding has been recorded by the appellate court that proper service on the respondents has not been effected and they were wrongly proceeded against ex parte on the basis of presumption raised under Order 5 Rule 19-A C.P.C, whereas the registered cover and summons were not addressed on the correct address. The judgment relied upon by counsel for the petitioner is not applicable to the facts and circumstances of this case. In that judgment, an order passed by the revenue Court was challenged on the ground that the same was passed ex parte by playing fraud. That was not a case where an application was filed for setting aside the ex parte judgment and decree under Order 9 Rule 13 C.P.C. on the ground of non-service of the defendants. As far as limitation is concerned, it has been found by the appellate Court that the application for setting aside the ex parte judgment and decree was filed immediately after the respondents came to know about the said decree. The starting point of limitation for filing such an application is the date of knowledge and not the date of passing of the ex parte judgment and decree. The starting point of limitation for filing such an application is the date of knowledge and not the date of passing of the ex parte judgment and decree. In these circumstances, I do not find any illegality or infirmity in the impugned order and no ground for interference under Article 227 of the Constitution of India is made out. 8. Dismissed.