Arjan Singh and Others vs Hazara Singh and Others

Inder Dev Dua, J.—This revision is directed against the order of the learned Additional District Judge, Gurdaspur, dismissing the Defendants-Applicants'' appeal from the order of Shri Balwant Singh Teji, Subordinate Judge Ist Class, Batala, dismissing the Defendants'' application under Order 9 Rule 13, Civil Procedure Code, for setting aside the ex-parte decree passed against them on 30th of November, 1961.

In order to understand and appreciate the point in controversy raised in this Court, it may be stated that one Hakam Singh had a son, Dipa. Hakam Singh''s wife is Smt. Lachhmi and Dipa''s wife is Smt. Taro. The present Petitioners in this Court are stated to be collaterals of Hakam Singh in fourth degree. Hakam Singh owned about 314 kanals and 8 marlas of land. On his death one-half of this land was mutated in favour of his widow, (sic) Lachhmi, and the other half in favour of his daughter-in-law, Smt. Taro, widow of Dipa, apparently Dipa had died earlier and indeed it is not disputed before me. On 16th of December, 1957 Smt. Taro sold her half share of land to the present Petitioners. On 22nd of November, 1958 Smt. Lachhmi executed a will in favour of the Petitioners. On Smt. Lachhmi''s death a dispute arose in regard to her inheritance. It is also stated on behalf of the Petitioners before me, and not controverted by the Respondents, that Smt. Bachni, Respondent No. 11 in; this Court, is a grant-daughter of Smt. Lachhmi. On 22nd of October, 1959 Smt. Lachhmi''s land was mutated in favour of Smt. Bachni. On 18th of March, 1961 the Petitioners instituted a suit challenging this mutation. On 29th of March, 1961 this suit was dismissed and an appeal was preferred by the Petitioner on 10th of June, 1961. On 12th of August, 1961 there was a compromise between the parties and the Petitioners are stated to have paid to Smt. Bachni a sum of Rs. 11,000.

It appears that three or four days earlier, on 8th of August 1961, Respondents Nos. 1 to 10 in this Court had instituted a suit for possession of about 88 kanals of land pleading an agreement with Smt. Bachni, dated 4th of April, 1959. This land is said to be a part of 314 kanals and 8 marlas of land, the mutation regarding which had been attested in favour of Smt. Bachni as an heir of Smt. Lachhmi. This suit was decreed ex parte on 30th of November, 1961 and these are the proceedings for setting aside this ex parte decree which have given rise to the present revision petition.

It has been asserted on behalf of the Petitioners, and not controverted on behalf of the Respondents, that on 8th of August, 1961 Shri Karam Chand, Advocate, counsel for the Plaintiffs, appeared and the suit was registered in the Court of Shri Harjit Lal Randev, Subordinate Judge Ist Class, Batala Indeed a certified copy of the Subordinate Judge''s order to this effect has been produced before the by Shri Sarin. Summonses were ordered to be issued for settlement of issues in the case on payment of process-fee and envelopes for registration. The next date fixed was 6th of October, 1961. It is noteworthy that no inter-mediate date was fixed by the learned Subordinate Judge as suggested in Rule 3, Chapter 7-B(b), High Court Rules and Orders, Volume IV. On 6th of October, 1961, alter noting the presence of Plaintiff No. 1 and counsel for the Plaintiffs, the learned Subordinate Judge proceeded to observe that there was a report of refusal to accept service by the Defendants. The court, however, directed fresh summonses to go for 13th of November, 1961 and it was noted that if the Defendants were not served personally, then they should be served by affixation and proclamation. It is again noteworthy that the Court did not care to fix any intermediate date as suggested in the rule noticed earlier. On 13th of November, 1961 the learned Subordinate Judge observed in his order that Defendants Nos. 2 to 6 were absent in spite of service by affixation and promotion and Defendant No. 1 was absent in spite of service by proclamation and that proceedings should be held ex parte against them. For ex parte proof the next date fixed was 29th of November, 1961. It was in these circumstances that the ex parte decree was passed in favour of the Plaintiffs.

The Petitioners learned Counsel has very strongly urged that the process-server appears to have made a false report on 8th of August, 1961 about the refusal of Defendants Nos. 1 to 6 to accept service. According to the counsel, this indecent haste, which is most uncommon, clearly suggests the anxiety of the Plaintiffs to have a report of refusal on the very first day when the suit was registered. It has also been pointed out that in spite of the order of the learned Subordinate Judge, no summonses were sent by registered post and on 6th of October, 1961, curiously enough, the Court also did not care to enquire as to why the summonses had not been sent through, registered post as earlier ordered. It is emphasised that the Court, was apparently not satisfied with the report of refusal, dated 8th of August, 1961, and that, if this was so the Court should have taken care to have the summonses same by means post on the second (sic). The order suggesting that in ease personal service was not effected service by affixation should be resorted to has also been criticized by the learned Counsel as inappropriate and contrary to rules. Proclamation is said to have been held on 13th of November 1961 and it is very strongly asserted that there is nothing on the record to establish the proclamation in accordance with the rules. The material in regard to the affixation also, according to the learned Counsel, is not forthcoming on the record and. there is nothing to show that it was done in accordance with the rules.

Another aspect to which the. learned Counsel for the Petitioners has pointedly drawn my attention is that on 8th of December, 1961 the Petitioners had applied for setting aside the ex parte, decree, alleging that they had not been served in the suit and they never knew anything about this litigation. The original reports of the process-servers were destroyed, as noticed by the learned District Judge. This, according to the learned Counsel, raised great suspicion about the regularity and indeed also the bona fides of the. process-servers conduct, particularly when it is kept in mind that on 8th of August, 1961 the process-server made a report of refusal to accept service by the Defendants. The argument indeed goes to the length of submitting that the office of the Subordinate Judge also did not care to forward the summonses by means of registered post, which is suggestive of collusion with the process-server and the Plaintiffs.

Dealing with the order of the learned Subordinate Judge, the Respondents'' learned Counsel has submitted that it was for the Applicants to prove that no service had been effected on them and if no process-server had gone to the village and affixed the summonses on the residential houses of the Applicants and made no proclamation, then...the attesting witnesses of the reports were the proper persons to, depose about them. These persons, having not been examined by the Applicants, the evidence of the process-servers must be accepted. The learned Subordinate Judge has also observed that the Applicants were unable to tell the Court as to why the process-servers had reported against them. According to the learned Counsel for the Petitioners, this order is tainted with a material irregularity inasmuch as the Court has not cared to notice that the Applicants could not prove the negative, and then the Court has also completely ignored the fact that the Plaintiffs had themselves summoned Gharibu, Chowkidar and Hazara Singh Lambardar and had at the eleventh hour declined to produce them. Since these witnesses were being summoned by the Plaintiffs-decree-holders, there was no point in the Petitioners summoning them, for the entire material could have been placed before the Court by these witnesses, who could have been cross-examined by the Petitioners. The testimony of the process-servers is inconclusive in view of their conduct.

In so far as the order of the learned Additional District Judge is concerned, it has been emphasised that he has merely referred to the reports of Diwan Chand process-server, Exhibit R.-1, dated 8th of August 1961, and Exhibit R. 2, dated 21st of September, 1961, reporting refusal to accept summonses by the Defendants, with the observation, without scrutinizing and pursuing the matter further, that his statement did not show that he had intentionally made false reports. He has also referred to the report, Exhibit R. 4, of Partap Singh process-server, who is said to have made a proclamation on 13th of November, 1961 in the village. It is interesting to note that 13th of November, 1961 was the date fixed in the Court, when an order for ex parte evidence was passed. The learned District Judge has also taken the view that the attesting witnesses on their parts, namely Gharibu, Chowkidar and Hazara Singh, Lambardar, should have been produced by the Petitioners, again without noticing that these two witnesses had actually been included in the list of witnesses by the decree-holders and dropped at the eleventh hour. As a matter of fact the learned Additional District Judge''s order is a mere repetition of what the learned Subordinate Judge had observed, without properly scrutinizing the matter independently, as was expected of an appellate Court.

In the record as forwarded to this Court, I have not been able to find Exhibit R. 4, the report of Partap Singh process-server (R.W. 2), who is stated to have gone for service through proclamation in the village and to have done so on 13th of November, 1961. This report has been relied upon by both the Courts below as a report in regard to proclamation.