Darshan Singh vs Maghar Singh and Another

N.K. Kapoor, J.—This revision is against the order dated 4.5.1994 passed by Sub Judge I Class, Ludhiana whereby the respondents'' application for setting aside the ex-parte decree dated 13.7.1987 has been accepted.

Petitioner filed a civil suit against the respondents-his brothers claiming exclusive right in respect of the property which fell to his share on the basis of a family settlement. According to the petitioner, summons were issued for service of the respondent-Maghar Singh, who declined to accept the summons arid so the Court ordered for effecting service upon him through munadi. It is after due service that ex-parte proceedings were taken against respondent No. l and thereafter on the basis of evidence adduced by plaintiff-the petitioner that the Court passed ex-parte decree on 30.7.1987. It is the case of the petitioner that respondent No. 1 knew of the pendency of the suit and purposely did not put in appearance and now has come forward with a false plea that he had no knowledge of the pendency of the suit. This plea has been advanced so as to reopen the concluded controversy for no justifiable reason. Otherwise too, there is sufficient material on record in the form of evidence that respondent No. 1 had knowledge of the suit and so the application filed by him for settling aside the ex-parte decree was clearly barred by limitation. Respondents'' counsel by way of reply controverted the various factual aspects highlighted by the petitioner as well as made legal submissions on the basis of judicial pronouncements urging that the impugned order does not call for any interference. Elaborating, the counsel read over the various interim orders passed by the Court before ordering service by munadi and made pointed reference to the fact that though the order of the Court for effecting service by registered post was not complied with by the petitioner yet somehow the Court resorted to ordering service by munadi. According to the counsel for the respondents, infact there was no order passed by the Court that the respondent be proceeded ex-parte.

I have heard the learned counsel for the parties, perused the impugned order as well as the judgments cited by the respective counsel. It would be appropriate to keep in mind the broad facts as noticed by the Court below also, before examining the legal submissions made by the learned counsel for the parties.

Summons for service of respondents in the first instance were issued on 28.10.1986 for 24.12.1986 on filing of process fee and registered covers and copy of the plaint within three days. On 24.12.1986, the Presiding Officer had gone to undertake training and so it was recorded in the order of the Court that the defendants were not served. They again were ordered to be summoned on 2.12.1987 on old process fee. As per report, Pritam Singh was served but Maghar Singh-defendant refused to accept service. It was thus ordered that defendant be served through registered cover. But these summons could not be issued as less stamp fee was deposited by the plaintiff. On the next day of hearing, Court ordered for effecting service through munadi. It is on the receipt of the report that service had been effected through munadi that the Court proceeded further with regard to the recording of evidence of the plaintiff. It is the case of respondent-Maghar Singh that he had no knowledge of the pendency of the suit or of the ex-parte decree and as soon as the same came to his knowledge, he applied for setting aside the same and this way the application was within limitation. The trial Court on the basis of the pleadings framed the following issues and permitted the parties to adduce evidence:-

(i) Whether there are sufficient grounds for setting aside the ex-parte decree dated 30.7.1987? OPA.

(ii) Whether the application is within time? OPP.

(iii) Whether the applicant is barred by his act and conduct to file the present application ? OPD.

(iv) Relief.

The trial Court examined issues 1 to 3 jointly and after elaborately discussing the depositions of the witnesses as well as the interim orders passed by the Court and also the fact that another suit between the parties filed by the other brother is yet pending came to the conclusion that Maghar Singh was not duly served and that his application was within limitation and so set aside the ex-parte judgment and decree subject to payment of cost of Rs. 500/-.

Learned counsel for the petitioner made reference to the report submitted by the process server stating that the respondent refused to accept service leading to effecting service by munadi and thereafter proceeding ex-parte. Trial Court examined this aspect of the matter and made reference to the interim orders passed by the Court. On perusal of the interim orders, the trial Court came to the conclusion that his predecessor was not fully satisfied that defendant has been duly served with summons either through munadi or by way of refusal. For this conclusion, Court observed that till 21.5.1987, respondent Maghar Singh had not been proceeded exparte. Keeping this in view and also the fact that petitioner-the plaintiff infact did not comply with the Court''s, earlier order of effecting service by registered post, came to the conclusion that there was no ground to proceed ex-parte against the respondent. The Court admittedly has the power of set aside an ex-parte decree, if a case is made out under Order 9 Rule 13 CPC. In the instant case, the Court on the appraisal of the evidence adduced, interim orders passed by the Court and also the fact that another suit between the parties based on the same writings, alleged to be a family settlement, rightly exercised its jurisdiction thereby setting aside the ex-parte judgment and decree which cannot be termed to be illegal or without jurisdiction. There is also no merit in the contention of the learned counsel for the petitioner that the application for setting aside the ex-parte judgment was not within limitation. It is the case of the respondent that he learnt about the impugned judgment and decree on 14.5.90 when he may attending on meetings of Akali Dal when a casual reference was made by one of the participants as to whether he has any dispute with his brother Darshan Singh and so taking a cue from this, he approached a counsel and thereafter filed an application for setting aside the ex-parte judgment and decree on 15.5.1990. It is the alertness at which the respondent approached the Court i.e. on the next date, which has been criticised by the counsel for the petitioner. According to the learned counsel for the petitioner this is a cooked up version and can hardly be believed. I find no substance in this contention of the learned counsel for the petitioner as well, merely for the reason that respondent filed an application for setting aside the ex-parte judgment and decree on the next date i.e. on 15.5.1990 is by itself no ground to doubt this assertion of the respondent especially when the same is supported by an affidavit. One cannot lose sight of the fact that Maghar Singh is contesting the suit filed by Pritam Singh, his other brother, which is also based on the alleged family settlement dated 28.6.1968. Infact, it is the case of the petitioner that the joint holding of the parties was divided between themselves on the basis of the writing dated 28.6.1968. Thus, it is difficult to apprehend that whereas Maghar Singh would be keen to contest the suit filed by Pritam Singh, he would allow the petitioner to procure an ex-parte decree.

Learned counsel for the petitioner placed reliance upon the following judgments:-

(i) Risaldar Pakhar Singh (deceased by Lrs.) and Ors. v. Bhajan Singh (deceased by LRs. ) and Ors. (1987) 91 P.L.R. 146

(ii) Babu Ram v. Satish Kumar Rawal (1991) 100 P.L.R.234 and

(iii) Amarjit Singh v. Harnam Singh 1990 PLR 22.

The judgment in Risaldar Pakhar Singh''s case (supra) need not be commented upon as the same stands specifically overruled in Babu Ram''s case (supra). The decision in Amarjit Singh''s case (supra) also does not advance the case of the petitioner in any manner. On facts, it has been found by the Court below that respondent come to know of the ex-parte judgment and decree on 15.5.1990, from which date the application for setting aside the ex-parte judgment and decree is within limitation. The decision of he division bench in Babu Ram''s case (supra) does not advance the case of the petitioner in any manner. The trial Court on the basis of evidence adduced by the parties has come to the conclusion that respondent Maghar Singh has not been duly served. Court also found fault with the conduct of the petitioner as he failed to deposit the requisite fee for effecting service by registered post. Not only this, the trial Court, did not pass a formal order of proceeding ex-parte against the respondent. Thus, taking a cumulative view of the matter, trial Court came to the conclusion that respondent had not been served and the alleged service by munadi was not due service as per facts of the case.

Learned counsel for the respondent too made reference to the following few judicial pronouncements in support of his submissions highlighting the liberal approach, which the Court is expected to take in such like cases, the mandate of Order 5 envisaging personal service and not ordering service by munadi without exhausting other provisions:

(i) Jagan Nath etc. v. Tek Chand etc. (1974) 76 P.L.R. 339

(ii) Ramesh Kumar v. Rameshwar Dass (1987) 92 P.L.R. 502

(iii) Girdhati Lal v. Ajay Kumar and Ors. (1985) 88 P.L.R. 258

(iv) International Steel House, Madras and Anr. v. Vardhman Spinning & General Mills Ltd., Ludhiana and Ors. (1989) 96 P.L. R. 217; and

(v) Gram Panchayat Vs. Surat Singh and Another, .

Since there is no quarrel with the legal propositions, as noticed in the various judicial pronouncements, highlighting upon the authorities cited would be merely burdening the case and so I refrain. The ratio of the judgments cited by the learned counsel for the respondent fully apply to the facts of the present case. Resultantly, I find no merit in this revision petition and consequently dismiss the same.