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2014 DIGILAW 273 (PNJ)

ROYAL SOLVEX PVT LTD v. BALWINDER SINGH

2014-02-04

MAHESH GROVER

body2014
JUDGMENT : MAHESH GROVER, J. 1. The petitioner is aggrieved of the order dated 07.09.2012 (Annexure P-4) to the extent that it does not permit him to file the written statement, even though he has been permitted to join the proceedings, while accepting his plea for setting aside ex-parte order against him. The facts of the case would reveal that the petitioner is one of the defendants in the suit filed by the present respondent No. 1 for ownership and possession of the property detailed therein on the basis of a registered sale deed executed in favour of his father in the year 1978 and to declare the subsequent sale deeds and judgment/decree dated 22.09.1994 in a civil suit regarding this very property as null and void. He has also sought joint possession, rectification of jamabandi and permanent injunction. 2. The petitioner was proceeded against ex-parte when he did not respond to the proceedings despite having been served through publication. The suit was preferred by respondent No. 1 in the year 2007 for challenging subsequent sale deeds on the premise that the predecessor-in-interest of the present respondent No. 1/plaintiff had allegedly purchased a part of the property from Harbans Singh (predecessor-in-interest of defendants No. 2 to 9). 3. Learned counsel for the petitioner contends that the service effected upon the petitioner by way of publication could not itself be sustained in view of the fact that initial modes of service prescribed by the Code of Civil Procedure were not exhausted prior to ex-parte proceeding against the petitioner. 4. This per se does not cut much ice with the Court for the simple reason that publication is an acknowledged mode of service and once effected, the litigant can not turn around to say that merely because all the initial modes of regular service such as affixation and munadi were not exhausted, this would render the publication issued under Order 5 Rule 20 CPC as meaningless. But if the facts of the case are to be seen then attempts were made to serve the petitioner through regular prescribed modes of service mentioned in the CPC. Even though the petitioner may dispute such a course on the ground that the attempts made were fictitious but that itself will not render the whole process of executing process through publication as bad. Even though the petitioner may dispute such a course on the ground that the attempts made were fictitious but that itself will not render the whole process of executing process through publication as bad. Attempts were certainly made to serve the petitioner, even though they were not to the satisfaction of the petitioner. Besides this, if such a course would be accepted, then it would lend legitimacy to the attempts of a litigant who benefits from delaying the proceedings. Therefore, it does not lie in the mouth of the petitioner to say that publication having been effected before exhausting other prescribed modes of service would be frustrated. 5. Be that as it may, this question now pales into insignificance considering that the learned trial Court has accepted the application of the petitioner for setting aside the ex-parte proceedings and the only grievance which survives is that he ought to have been permitted to file his written statement. 6. The Court has examined the facts and notices that respondent No. 1 himself initiated the process of filing the suit against the present petitioner and others for declaration of his ownership and possession on the basis of a sale deed executed in the year 1978. 7. It is the contention of the learned counsel for the respondents that the sale deed was executed qua number of people who have been impleaded as defendants in the suit and some of them have filed their written statement and, therefore, the petitioner was at liberty to adopt the same pleas which have been taken by the other co-defendants. 8. I am not in agreement with this. The petitioner-defendant who has been permitted to join ex-parte proceedings should have been permitted to file the written statement in his own defence, particularly keeping in view the fact that whatever prejudice has been caused to respondent No. 1/plaintiff by delay can be compensated through costs. 9. The petition is, therefore, accepted and the impugned order is set aside only to the extent it permits the petitioner to join the proceedings without allowing him to file his written statement. The petitioner shall file his written statement within a period of two weeks from today and thereafter if he wishes to lead any evidence, the trial Court shall not give more than two opportunities to him, considering the fact that seven years have elapsed since the filing of the suit. The petitioner shall file his written statement within a period of two weeks from today and thereafter if he wishes to lead any evidence, the trial Court shall not give more than two opportunities to him, considering the fact that seven years have elapsed since the filing of the suit. Similarly, in case the respondents want to rebut the evidence led by the petitioner, they would be given one opportunity for the same. The petition is disposed of in the above terms with costs of Rs. 20,000/-, which the petitioner shall pay to respondent No. 1.