Gram Panchayat vs Surat Singh and Another

Ashok Bhan, J.—Surat Singh and Harbans Singh plaintiff-respondents (hereinafter referred to as the plaintiffs) filed a suit for permanent injunction on 18.11.1983 restraining the defendant-petitioner Gram Panchayat (hereinafter referred to as the defendant) from interfering with their possession over 63 Kanals 5 Marlas of land specified in the heading of the plaint The suit was decreed ex-parte by Sub Judge 1st Class, Patti, on 14.10.1985. An order restraining the Gram Panchayat from dispossessing the plaintiffs or interfering with their possession otherwise than in the due course of law was passed On 15.11.1985, Gram Panchayat moved an application under order 5 Rule 13 C.P.C. for setting aside the ex-parte decree asserting that it had never been served; that it had neither refused to accept the service nor any munadi was done in the village and that it had come to know of the decree on 15.11.1985 through Kundan Singh, and on the same date had filed the application for setting aside the ex-parte decree.

Notice of this application was given to the plaintiffs. On service, plaintiffs put in appearance and denied the assertions made by the Gram Panchayat and submitted that the defendant had not appeared deliberately and it was served through munadi. It was also averred that the application for setting aside the ex-parte decree had not been filed within time. Allegations of fraud were also denied.

From the pleadings of the parties, the following issued were framed:-

Whether there are sufficient grounds to set aside the ex-parte decree dated 14.10.1985? OPA

Whether the application is time barred? OPR

Relief.

Parties led their evidence. After going through the same the trial Court dismissed the application by deciding both the issues against the defendant. Order passed by the trial Court was upheld in appeal Defendants being aggrieved have come to this Court.

I have heard the counsel for the parties at length.

Taking up the second issue (issue No. 2) first, the case of the defendant was that Kundan Singh informed Balwinder Singh about the existence of ex-parte decree on 15.11.1985. Testimony of Kundan Singh A.W5 was disbelieved by the courts below only on the ground that in the Court he had stated that he had informed Balwinder Singh about the ex-parte decree in the month of Poh, which starts from 15th of December thereby falsifying tile plea taken by the Gram Panchayat that the Sarpanch was informed about the date by Kundan Singh on 15.11.1985. The reasons given by the courts below on issue No. 2 cannot be sustained. The definite case of the Gram Panchayat was that it had been informed by Kundan Singh on 15.11.1985 and on the same date, application for setting aside the ex-parte decree was filed. Even if Kundan Singh has stated in his statement that he had informed that Sarpanch of the Gram Panchayat in the month of Poh. it makes no difference in the merits of the controversy or damage the case of the defendant. Application was filed by the Gram Panchayat for setting aside the ex-parte decree on the date it was informed and the delay filling the application for condonation of delay was. only one days There is nothing on: the record to disbelieve the testimony of Kundan Singh AW5. The present application was filed within time after acquiring knowledge about the ex-parte decree. Findings recorded by the Courts below are set aside an it is held that the application was filed by the Gram Panchayat within 30 days of acquiring the knowledge.

Coming to issue No. 1, both the Courts have held, that summons were sent to the respondents who were not served and thereafter service was effected by Munadi. I have gone through the zimni orders passed by the trial Court when the Gram Panchayat was proceeded ex-parte. For the first time, summons were issued on 21.11.1983 for 19.12.1983. On 19.12.1983 the following order was passed:-

" Present: Counsel for the plaintiff.

Summons received back unserved. I am satisfied that defendant cannot be served in an ordinary way. I, therefore, order that the defendant be summoned through munadi for 9.1.84. M.F. be filed immediately."

It would be seen from this that the Gram Panchayat had never refused to accept the service. On the first date itself, the trial Court ordered that the service on, the respondents be effected by substituted service. On the next date i.e. 9.1.1984, the following order was passed effecting service on the defendant by Munadi and proceedings against the defendant were started ex-parte :-

" Present: Counsel for the plaintiff.

Munadi has been effected but none has come present. I, therefore, order that defendant be proceeded against ex-parte. Now for exparte evidence case to come up on 28.1.1984."

Gram Panchayat examined Roor Singh Chowkidar AW 3 who stated that he did not make any munadi in the village nor he charged any fee for the same. This evidence was contradicted by Ravi Kumar a process server RW1 who produced a receipt showing that he had paid Rs. 3/- as munadi fee to Roor Singh against receipt which was thumb marked by the Chowkidar. Roor Singh denied the same. Plaintiffs produced R.S. Bal a hand writing expert who stated that the thumb impression on the receipt was that of Roor Singh Chowkidar. Gram Panchayat took time to produce its expert Dewan K.S. Puri but he did not appear in the witness box. The testimony of Roop Singh was disbelieved and that of R.S. Bal and Ravi Kumar process server was accepted and it was held that sufficient grounds were not made out for setting aside the ex-parte decree.

From the perusal of the Zimni orders, it is clear that on the first date itself when the summons where received back by the Court unserved, the trial Court ordered that ft was satisfied that the defendant cannot be served in the ordinary way and, therefore, summons be Served through munadi There was no reason for the court to order the service by munadi, on the first date itself when summons had been received back unserved. The reason for not effecting the service have not been stated. There was no fault of the defendant The court on die first date itself ordered that service be effected through munadi and by the next date report regarding service through munadi is received and that the defendant was proceeded ex-parte. Chowkidar of the village stated that he had not effected the munadi or received the fee which, of course, contradicted by the Process Server Ravi Kumar. On the perusal of the record, I am satisfied that proper service has not bent effected that the Gram Panchayat. Court was not justified in ordering sabsituted service on the first date itself. An, institution like Gram Panchayat in the absence of any of any suggestion to the effect that the defendant was trying to avoid service, ex-perte proceedings against Gram Panchayat could not have beta initiated against it were these circumstances. There was no proper service of the Gram Panchayat since I have held that Gram Panchayat had not been served properly and the ex-perte proceedings initiated against it were also bad, I reverse . the finding on issue No. 1 as well. No. 1 ex-parte decree passed in pursuance to the ex-parte proceedings is also rendered bad in law. Thus, finding on issue No. 1 is also reversed.

For the reasons recorded above, this revision petition is accepted, the impugned judgments of the courts below are set aside and the case is remanded back to the trial Courts with the direction to proceed with the case in accordance with law.

Parties through their counsel are directed to appear before the trial court on 28.9.1994. No costs.