Amarjit Kaur vs Pargat Singh and Others

L.N. Mittal, J.—Defendant No. 1 Amarjit Kaur has filed the instant revision petition u/s 115 of the CPC (in short - CPC) assailing order dated 20.02.2007 passed by learned Additional Civil Judge (Senior Division), Amritsar, thereby dismissing application moved by the Petitioner under Order 9 Rule 13 read with Section 151 CPC for setting aside ex-parte judgment and decree dated 24.09.1998 and also assailing judgment dated 04.05.2009 passed by learned Additional District Judge, Amritsar, thereby dismissing Petitioner''s appeal preferred against order C. R. No. 4750 of 2009 2 dated 20.02.2007 of the trial court.

Respondent No. 1 - Plaintiff Pargat Singh filed suit against the Petitioner and proforma Respondents No. 2 to 6 for permanent injunction. Defendants refused to accept service by registered post and thereupon they were served by munadi and since none appeared for them, they were proceeded ex-parte and ultimately, the suit was decreed ex-parte vide judgment and decree dated 24.09.1998.

Defendant No. 1 - Petitioner filed application under Order 9 Rule 13 read with Section 151 CPC alleging that she was never served in the suit nor she refused to accept service. It was alleged that Plaintiff - Respondent No. 1 obtained false report of refusal and munadi. It was also pleaded that Petitioner - Defendant No. 1 was hotly contesting another suit filed by Plaintiff''s brother Jagir Singh regarding the same property and thus, there was no question of not contesting the instant suit.

Respondent No. 1 denied the allegations of the Petitioner and inter alia pleaded that Defendants including Defendant No. 1 were duly served in the suit and were rightly proceeded ex-parte.

Both the courts below dismissed the application of Defendant No. 1 - Petitioner for setting aside ex-parte judgment and decree. Feeling aggrieved, instant revision petition has been preferred.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the Petitioner reiterated that the Petitioner was never served in the suit and was wrongly proceeded ex-parte. It was also contended that the Petitioner is hotly contesting the suit filed by Plaintiff''s brother regarding the same property and therefore, there was no reason for the Petitioner not to contest the instant suit filed by Plaintiff - Respondent No. 1.

On the other hand, learned Counsel for Plaintiff - Respondent No. 1 contended that the Defendants were served in the suit by Regd. A. D. post. When they refused to receive summons sent by registered post at correct addresses, they were again served by munadi and therefore, they were rightly proceeded ex-parte as they did not appear to contest the suit.

I have carefully considered the rival contentions.

As noticed herein above, Defendants were proceeded ex-parte on the basis of service effected through registered post by the report of refusal and then service through munadi. The Petitioner has stepped into witness-box to depose that she never refused to accept the summons by registered post nor she was served through munadi.

However, Plaintiff - Respondent No. 1 has not examined the postman, who made report of refusal on Regd. A. D. cover. In addition to it, while the Petitioner is contesting the suit filed by Plaintiff''s brother regarding the same suit property, there is no reason why the Petitioner would not intentionally appear in the instant suit.

Keeping in view the aforesaid, I am of the considered opinion that ends of justice would be met if ex-parte judgment and decree are set aside on payment of cost. Plaintiff - Respondent No. 1 can be compensated by cost and will not suffer any prejudice because he can succeed again, if he proves his case after Petitioner is permitted to contest the suit. On the other hand, if ex-parte judgment and decree are not set aside, Petitioner shall suffer irreparable loss in the instant case as she has lost the case without having opportunity of hearing and adjudication on merits.

For the reasons aforesaid, the instant revision petition is allowed and impugned orders of the courts below are set aside and application moved by the Petitioner for setting aside ex-parte judgment and decree dated 24.09.1998 is allowed and ex-parte judgment and decree dated 24.09.1998 in the suit filed by Plaintiff - Respondent No. 1 against Petitioner and proforma Respondents No. 2 to 6 are set aside, subject to payment of Rs. 5,000/-as cost precedent.

Parties are directed to appear before the trial court on 13.12.2010. File of the trial court be sent back at once.