Gian Chand vs Raj Kumari

Dev Darshan Sud, J.—This revision petition has been filed by the petitioner, who was the plaintiff before the learned trial Court, challenging the order passed by the learned Civil Judge (Junior Division), Barsar, District Hamirpur, allowing application under Order 9 Rule 7 of the CPC instituted by the respondent-defendant. In the application for setting aside the ex-parte order, the defendant prayed that ex-parte decree passed against her on 24.5.2008 be set aside as there was no valid service for that date nor she had received the copy of summons along with copy of document(s). Her case was that she first gained knowledge about this fact on 9th November, 2008, when the plaintiff-petitioner held out threats to dismantle the projection of her house. She made inquiries and thereafter she found that an ex-parte decree has been passed against her and in these circumstances, she filed an application for setting aside the ex-parte decree with an application u/s 5 of the Limitation Act for condoning delay, which according to her, was bona fide.

On the pleadings of the parties, the learned trial Court settled two issues. The first related to the crucial fact as to whether there was sufficient ground to set aside the order and whether there was sufficient ground for condoning delay. The second issue was with respect to the maintainability of the petition and third was the relief which could be granted.

In support of their respective contentions, the respondent appeared as AW1 and stated that she came to know about the fact of ex-parte decree having been passed against her on 9.11.2008 when the plain tiff-petitioner herein threatened her to obtain orders for demolition of the projection of her house. She stated that no summons were served on her. When she was cross examined and confronted with the summons Ext. R-1, she disowned her signatures stating that they were not hers. She did not admit her signatures on summons Ext. R-2, power of attorney Ext. R-3 and the application filed by her u/s 5 of the Limitation Act.

AW2 Surinder Kumar says that on 9.11.2008 when he was working for the respondent-defendant, the plaintiff held out threats to demolish fix projection of her house. In his cross examination, he says that he did not sign the affidavit which forms a part of his examination in chief. The petitioner-plaintiff appeared as RW1 and stated that the respondent-defendant was duly served. He had accompanied with the Process-Server.

On the totality of the evidence, the learned trial Court holds that there is no witness accepting the fact that the respondent-defendant was in fact served nor there is any report of the Process-Server that the defendant was personally known to him. In these circumstances, there was no valid service. Though the application has been filed at a late stage, but in view of the fact that signatures of the defendant-respondent had not been proved; the Court granted the relief as prayed for and set aside the ex-parte decree.

In the present petition also, the respondent was served, but she has not put in appearance.

Adverting to the evidence on record, I find from the cross examination of the respondent that she had one case titled Raj Kumari v. Om Parkash pending in the same Court. She denied her signatures on the summons, she denied her signatures on Vakalatnama (power of attorney) Ext. R-3 and the application u/s 5 of the Limitation Act. She admits her signatures on the affidavit. Adverting to the evidence of AW2 Surinder Kumar, I find that his testimony is rather strange. He says:

....mujhe pataa na hai ki mere affidavit mein kaya likha hai. Theek hai ki affidavit par mere daskhat hai.

(Translation: I do not know what has been typed/written in my affidavit. It is correct that I have signed the affidavit.)

His testimony therefore requires to be discarded straight away. Adverting to the evidence of the respondent, I do find it very strange that she disowned her signatures not only on the summons but also on the power of attorney and application u/s 5 of the Limitation Act. In the face of these admissions, what was the trial Court trying? The respondent seems to be litigating, at her own whims and pleasure. The decree could not have been set aside merely on the ground that summons did not bear the signatures of the witness. Though this was sufficient ground for doing so, but when coupled with the other facts, there is a serious doubt in my mind as to whether the respondent has come to Court honestly and with true facts and is not lying through her teeth. I do not wish to add anything further as it jeopardizes the case of the respondent. In these circumstances, order of the learned trial Court passed in CMA No. 327 of 2008 is quashed and set aside with this direction that the case will be taken up afresh for decision on the evidence on record. The signatures of the respondent, which she has denied, will be sent to the hand writing expert for verification and if it is found that these are her signatures, action in accordance with law will be initiated against her. The Court shall ascertain from the respondent as to under what circumstances, her signatures were obtained/affixed on the power of attorney as also on application u/s 5 of the Limitation Act because in case she disowns her signatures, the natural consequence would be that there is no pending application u/s 5 of the Limitation Act and no Advocate is representing her. It goes without saying that the respondent herein shall be given an ample opportunity to prove her case. Costs of the petition on the respondent.