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2011 DIGILAW 2019 (PNJ)

Piare Lal v. Modern Automobiles

2011-11-09

VIJENDER SINGH MALIK

body2011
JUDGMENT VIJENDER SINGH MALIK, J. - Piare Lal, petitioner had brought a suit for possession by way of ejectment of M/s Modern Automobiles, Karnal from a premises claimed to be owned by him and occupied by M/s Modern Automobiles and another as tenants. In the said suit, M/s Modern Automobiles and other defendants had been proceeded against ex-parte on 5.8.2009. After taking the evidence of the plaintiff, an ex-parte decree was passed on 12.1.2010. 2. M/s Modern Automobiles filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte judgment and decree dated 12.1.2010 on the ground that the applicants were not served with a notice of the suit properly and that decree passed ex-parte against them on 12.1.2010 is liable to be set aside. They have claimed that they came to know of the ex-parte decree passed against them only on 4.2.2010 when an employee with them received notice of the execution application along with notice of ex-parte order dated 12.1.2010 and on receipt of the said notice, they have filed the application in hand on 11.2.2010. 3. The application has been opposed by Piare Lal, petitioner claiming the same to be abuse of process of the court. Plea of estoppel was also taken. It is claimed on merits that notices were duly served. According to him, Gurcharan Singh, process server (RW-3) from Chandigarh went to the residence of the defendants, where he was told that the defendant was at plot No. 4, MW, Industrial Area, Chandigarh, where M/s Modern Automobiles Workshop is situated. It is claimed that the process server was left with no alternative but to make a report of refusal on 26.3.2009. According to him, the defendants were then served by way of publication in The Tribune dated 31.7.2009 and inspite of the same, the defendants did not put in appearance in the suit. Asserting that there is no ground for setting aside the impugned judgment and decree, the application is prayed to be dismissed. 4. On the pleadings of the parties, learned trial court framed the following issues : 1. Whether there are sufficient ground to set aside exparte judgment and decree dated 12.1.2010 as prayed for? OPA 2. Whether the applicants is estopped from filing the present application by his act and conduct? OPR 3. Whether the application is not maintainable in its present form?OPR 4. Relief. 5. Whether there are sufficient ground to set aside exparte judgment and decree dated 12.1.2010 as prayed for? OPA 2. Whether the applicants is estopped from filing the present application by his act and conduct? OPR 3. Whether the application is not maintainable in its present form?OPR 4. Relief. 5. The parties led their respective evidence. Hearing learned counsel representing the parties, learned trial court has found under issue No.1, vide order dated 30.8.2011, that the applicants were not duly served in the suit and there are sufficient grounds for setting aside the ex-parte judgment and decree dated 12.1.2010. Consequently, the application was allowed and the judgment and decree dated 12.1.2010 have been set-aside. 6. Aggrieved by the aforesaid order, the present revision petition has been brought by the plaintiff. 7. I have heard Mr. B.S.Bedi, learned counsel for the petitioner and have gone through the record carefully. 8. Learned counsel for the petitioner has submitted that the summons in the suit were first directed to the Karnal address of the defendants and when it was reported on the same that the defendants resided at Chandigarh, notices were issued to them at their Chandigarh address. According to him, the process server went to the residence of defendants but he was told that they were at M/s Modern Automobiles Workshop in Industrial Area, Chandigarh. According to him, the process server was, thus, left with no option but to endorse the refusal of the defendants to accept the notice of the suit. 9. Learned counsel for the petitioner has further submitted that there after notice of the suit was published in The Tribune on 31.7.2009 and learned trial court has completely ignored this aspect of the evidence of the plaintiff. According to him, the service of the defendant-applicants by way of publication in The Tribune has no where been discussed by learned trial court. 10. Learned counsel for the petitioner has taken me through the impugned order and has submitted that the learned trial court has ignored the material evidence and has based his decision on extraneous matter. He has submitted that despite service, the defendants failed to appear in the court and their application for setting aside the ex-parte judgment and decree had no merit. 11. He has submitted that despite service, the defendants failed to appear in the court and their application for setting aside the ex-parte judgment and decree had no merit. 11. For setting aside the judgment and decree dated 12.1.2010, the application has been filed on 11.2.2010 which appears to have been filed within limitation, even if it is ultimately found that the defendants were properly served with a notice of the suit. 12. The case before me is , however, that the defendant-applicants were not duly served with the notice of the suit. What appears on the record is that after the report that the defendants are living at Chandigarh, the process server visited the residence of the defendants where he was told that the defendants had gone to the workshop in Industrial Area, Chandigarh. This itself did not amount to refusal to take notice, justifying the trial court to order substituted service by way of publication. The notice was to be served upon the defendants and not on their house. When the process server was told that the defendants were there at M/s Modern Automobiles Workshop at 4 MW Industrial Area, Chandigarh, notice should have been served upon the defendants there. 13. It is an admitted fact on the record that the report of refusal does not have the attestation by an independent witness. Such an attestation is necessary to authenticate the report of refusal. For both these reasons, report of refusal was not worth acting upon and, therefore, learned trial court was not justified in directing substituted service of the suit to be effected on the defendants. When there was no ground justifying issuance of publication in the suit, publication of notice in the news paper would not amount to due service. 14. Alongwith the aforesaid circumstance, where the report of refusal has not been made in circumstances justifying the same, the plaintiff has played a game upon the defendant-applicants. The defendant-applicants kept sending the rent to the plaintiff by way of pay-orders and cheques. The plaintiff kept receiving the same but claimed to have not encashed them. His keeping them with him and not returning them to the defendants would show a design on his part to keep the proceedings of the suit a secret from them. The defendant-applicants kept sending the rent to the plaintiff by way of pay-orders and cheques. The plaintiff kept receiving the same but claimed to have not encashed them. His keeping them with him and not returning them to the defendants would show a design on his part to keep the proceedings of the suit a secret from them. This circumstance reaffirms me in my view that the report of refusal was not valid and the order of effecting substituted service by way of publication could not be justified on the same. 15. In these circumstances, I find no perversity in the approach of learned trial court in deciding the application of the defendants-applicants under Order 9 Rule 13 CPC for setting aside the judgment and decree dated 12.1.2010. The revision petition, therefore, fails and is dismissed.