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2011 DIGILAW 1612 (PNJ)

Bahadur Singh and Company v. Gian Singh

2011-08-23

MEHINDER SINGH SULLAR

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JUDGMENT MEHINDER SINGH SULLAR, J. - The epitome of the facts, relevant for disposal of the present revision petition and emanating from the record is, that Gian Singh son of Tara Singh-respondent-plaintiff (for brevity “the plaintiff”) filed the civil suit against Bahadur Singh and Company through its partner Bahadur Singh-petitioner-defendants(for short “the defendants”). Since, nobody appeared on behalf of the defendants, despite service by way of Munadi and affixation, so, ex-parte proceedings were ordered against them, by virtue of order dated 30.10.2003. They did not join the proceedings, ultimately, the suit was decreed against them by the trial Court, by means of ex-parte judgment and decree dated 30.11.2004. 2. As, the defendants did not comply with the aforesaid decree, therefore, the plaintiff filed the execution petition. The defendants appeared and moved an application for setting aside the ex-parte judgment and decree dated 30.11.2004, invoking the provisions of Order 9 Rule 13 CPC, inter alia, pleading that neither they were duly served, nor had any knowledge about the pendency of the civil suit and the ex-parte decree was illegally passed against them. 3. The plaintiff refuted the prayer of the defendants and filed the reply, raising certain preliminary objections of, maintainability of the application, limitation and locus standi of the defendants. According to the plaintiff, the judgment and decree in question were passed after due service on the defendants. It will not be out of place to mention here that the plaintiff has stoutly denied all other allegations contained in the application and prayed for its dismissal. 4. From the pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- “1. Whether the applicant was never served in the civil suit in question ? OPP 2. Whether there are sufficient grounds to set aside the judgment and decree dated 30.11.2004 ? OPP 3. Relief.” 5. The parties to the litigation produced oral as well as the documentary evidence, in order to substantiate their respective pleaded stands. 6. The trial Court, taking into consideration the entire material/evidence on record, dismissed the application of the defendants, vide impugned order dated 17.09.2008. 7. Aggrieved by the impugned decision of the trial Court, the defendants filed the appeal, which was dismissed as well by the first Appellate Court, by way of impugned order dated 11.05.2010. 8. 6. The trial Court, taking into consideration the entire material/evidence on record, dismissed the application of the defendants, vide impugned order dated 17.09.2008. 7. Aggrieved by the impugned decision of the trial Court, the defendants filed the appeal, which was dismissed as well by the first Appellate Court, by way of impugned order dated 11.05.2010. 8. The petitioner-defendants still aggrieved by the impugned orders of the Courts below and preferred the present revision petition under Article 227 of the Constitution of India. 9. After hearing the learned counsel for the petitioners, going through the record with his valuable help and after deep consideration of the entire matter, to my mind, there is no merit in the instant petition in this regard. 10. Ex facie, the argument of the learned counsel that since, the defendants were not duly served, so, the Courts below have committed a legal mistake in dismissing their application, for setting aside the ex-parte decree, is neither tenable nor the observations of this Court in case Gurdeep Kaur Versus Vinod Kumar Lamba, 1994(2) PLR 185, of Bombay High Court in case Sudhir Ramdas Sonar Versus Fakir Mohammad Abubnai Momin and others, 1997 (1) ICC 297 and of Karnataka High Court in case Sitabai Versus Narayana Rao, 1999(4) CCC 696, are at all applicable and distinguishable on the facts. 11. As is clear that, in Gurdeep Kaur's case (supra), Pritam Singh, whose whereabouts were unknown, was proceeded ex-parte in a rent eviction petition, after making some attempts to serve him at his residential address and not at the address where he was carrying on his business, which was also the tenanted premises. The summons were received back with the report that some lady had met the process-server at the house in question and she had stated that previously the tenant was residing there, but now he is not residing there. 12. Sequelly, in Sudhir Ramdas Sonar's case (supra), without being satisfied with regard to the service of the defendants in ordinary process, the summons were ordered to be published in Prabhat Newspaper. Likewise, in Sitabai's case (supra), the application under Order 9 Rule 13 CPC was dismissed simply for the reason that certified copy of ex-parte decree was not filed along with the application. So, on the peculiar facts and in the special circumstances of those cases, it was observed that there was no due service on the defendants. Likewise, in Sitabai's case (supra), the application under Order 9 Rule 13 CPC was dismissed simply for the reason that certified copy of ex-parte decree was not filed along with the application. So, on the peculiar facts and in the special circumstances of those cases, it was observed that there was no due service on the defendants. 13. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the petitioner-defendants in the instant controversy. 14. As is evident from the record and rightly noticed by the Courts below that the petitioner-defendants were duly served by way of Munadi and affixation, for appearing before the Court on 30.10.2003, vide report (Ex.DW1/B) of the process-server, which was proved by DW Maan Singh. The report was duly attested by Bawa Singh, Lamberdar and Surinder Singh, Chowkidar. 15. Having completed all the codal formalities, the trial Court having relied upon the report (Ex.DW1/A) on summons, proved by Maan Singh, process-server, rightly came to conclusion that no evidence has been led by the defendants, to contradict the cogent evidence brought on record by the plaintiff in this respect. So, it was concluded that the defendants were duly served and the application filed by them was not within limitation. 16. Not only that, the decision of the trial Court was upheld by the first Appellate Court, through the medium of impugned order dated 11.05.2010, which in substance is as under:- “I have considered the submissions of both the sides and have perused the record. The contention of learned counsel for the appellant that no proper service was effected upon him in the earlier suit titled as Gian Singh Vs. Bahadur Singh, cannot be accepted because as per evidence produced by the respondent, Process Server Maan Singh when appeared as witness in the court, has stated on oath that summons of the case titled Gian Singh Vs. Bahadur Singh were given to him for execution of the same. He visited Chamkauar Sahib and furnished his report on the summons which is Ex.DW1/A. He visited the place twice. Summons were again entrusted to him for service for 30.10.2003 to be served by way of Munadi and affixation. Munadi was effected and he furnished his report dated 10.9.2003 and the same is Ex.DW1/B. Bawa Singh Numberdar was present there. He visited Chamkauar Sahib and furnished his report on the summons which is Ex.DW1/A. He visited the place twice. Summons were again entrusted to him for service for 30.10.2003 to be served by way of Munadi and affixation. Munadi was effected and he furnished his report dated 10.9.2003 and the same is Ex.DW1/B. Bawa Singh Numberdar was present there. Copy of summons was affixed at the house of the appellant. Munadi was effected by the Chowkidar by beat of drum. Bawa Singh Numberdar also appeared as witness and corroborated the stand taken by the Process Server. There is no rebuttal to this evidence produced by the respondent. Apart from this, there was no ill-will or enmity of the Process Server or Numberdar against the appellants for giving false report. Therefore, the contention of counsel for the appellants that summons were not properly served upon them in the previous suit titled as Gian Singh Vs. Bahadur Singh, is devoid of force. The contention of learned counsel for the appellant that the application moved by him for setting aside proceedings in the case titled as Gian Singh Vs. Bahadur Singh is within time, cannot be accepted, because as per Article 123 of Limitation Act, the application for setting aside ex parte proceedings is to be filed within 30 days from the date of knowledge of the ex parte proceedings. As per pleadings of the appellants, they were not duly served in the present case. They came to know of ex parte judgment and decree in the execution application when they received summons in the execution proceedings. No evidence has been led by the appellants to prove as to when they received the summons in the execution application. No copy of summons has been placed on file to prove that on which dates they came to know about the ex parte proceedings. No date has been mentioned in the application as well as in the evidence produced by the applicant. Therefore, the story of the appellants that they came to know about ex parte proceedings during execution application is an after thought story. There is no particular date has been mentioned in the application to prove as to on which date the applicants/appellants acquired knowledge of the judgment and decree dated 30.11.2004. Therefore, the story of the appellants that they came to know about ex parte proceedings during execution application is an after thought story. There is no particular date has been mentioned in the application to prove as to on which date the applicants/appellants acquired knowledge of the judgment and decree dated 30.11.2004. Even appellant Bahadur Singh did not mention this fact in his affidavit filed in his examination-in-chief to prove as to when the appellants acquired knowledge of the judgment and decree in question. So, it can be safely concluded that the application in hand is beyond limitation and the same is time barred.” 17. No other meaningful argument has been raised by the learned counsel for the petitioner-defendants, to assail the findings of the Courts below. All the remaining contentions, with regard to the irregularity in substituted service and relatable to the appreciation of evidence, now sought to be urged on their behalf, have already been duly considered and dealt with by the Courts below, in this relevant direction. 18. Meaning thereby, the Courts below have recorded the valid grounds in the impugned orders. Such orders, containing the valid reasons, cannot legally be set aside, in exercise of limited revisional jurisdiction of this Court, as contemplated under Article 227 of the Constitution of India, unless the same are perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioners, so, the impugned orders deserve to be and are hereby maintained in the obtaining circumstances of the case. 19. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition is hereby dismissed as such. Petition dismissed.