Gurmeet Singh vs Kala Ram

L.N. Mittal, J.—Plaintiff Gurmeet Singh has filed this revision petition under Article 227 of the Constitution of India impugning order dated 16.09.2010 (Annexure P-6) passed by learned Civil Judge (Senior Division), Kapurthala, thereby allowing application Annexure P-4 filed by defendant-respondent Kala Ram under Order 9 Rule 13 of the CPC (in short � CPC) for setting aside ex-parte judgment and decree dated 30.01.2003 (Annexure P-2).

Plaintiff-petitioner filed suit vide plaint Annexure P-1 for specific performance of the agreement to sell and also claiming relief of injunction. The defendant was served in the suit on 30.08.2002 for 03.09.2002. However, none appeared for the defendant-respondent and he was accordingly proceeded ex-parte. The suit was thereafter decreed vide ex-parte judgment and decree dated 30.01.2003 (Annexure P-2).

Defendant-respondent moved application Annexure P-4 dated 03.02.2004 for setting aside ex-parte judgment and decree (Annexure P-2) alleging that the plaintiff filed the suit on the basis of forged and fabricated agreement. The defendant was never duly served in the suit. The plaintiff, in collusion with Process Server, got thumb impressions of the defendant and got made false report of service of summons. The defendant received notice in execution petition and thereupon, came to know of the ex-parte judgment and decree.

Plaintiff, by filing reply Annexure P-5, resisted the application and inter alia pleaded that the defendant was duly served in the suit. Averments made in the application were controverted. The application was also alleged to be time barred. Some other objections were also raised.

Learned trial court, vide impugned order Annexure P-6, has allowed the application moved by defendant and has set aside the ex-parte judgment and decree Annexure P-2. Feeling aggrieved, plaintiff has filed the instant revision petition.

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

Counsel for the petitioner vehemently contended that the petitioner-plaintiff, besides himself appearing in the witness-box, also examined the concerned Process Server as witness and both of them have stated that the defendant-respondent was duly served in the suit, and therefore, impugned order is unsustainable.

On the other hand, counsel for defendant-respondent contended that thumb impression of defendant-respondent was obtained on upper side of the summons and report was made by the Process Server below the thumb impression, and therefore, there was no due service.

I have carefully considered the rival contentions.

In this case, there was personal service of summons of the suit on the defendant-respondent. In spite of personal service, he did not appear. Consequently, he was righty proceeded ex-parte. The defendant has admitted that he had affixed his thumb impression on the summons. Consequently, he very well knew that he had received summons of the Court in some case, but in spite thereof, he did not appear in the trial court. Consequently, it cannot be said that there was no due service of summons on the defendant. Merely because report of Process Server was made below the thumb impression of the defendant and not above the thumb impression, it cannot be said that there was no due service of the defendant in the suit.

It may also be added that according to second proviso to Order 9 Rule 13 CPC, ex-parte decree shall not be set aside merely on the ground that there has been an irregularity in the service of summons. In the instant case, even if it is assumed for the sake of arguments only that there was irregularity committed by Process Server in making the report below the thumb impression of the defendant and not above the thumb impression, this by itself, would also not be sufficient to set aside the ex-parte judgment and decree. At the risk of repetition, it has to be highlighted that personal service was effected on the defendant in the suit and mere excuse that thumb impression of the defendant had been obtained by plaintiff in collusion with Process Server would not be sufficient to set aside the consequent ex-parte judgment and decree. Impugned order of the trial court is patently perverse and illegal and suffers from jurisdictional error.

Application moved by defendant for setting aside ex-parte judgment and decree is also time barred. The ex-parte judgment and decree was passed on 30.01.2003 after due service of summons in the suit. Consequently, limitation period of 30 days for filing the application commenced on the date of passing of ex-parte judgment and decree. However, application for setting aside the same was moved more than a year thereafter, and therefore, the application is clearly barred by limitation. The limitation period would not commence from the date, on which the defendant received notice in execution petition. If the defendant had not been duly served in the suit, then the limitation period could commence from the date of knowledge of ex-parte judgment and decree, but where the defendant has been duly served in the suit, limitation period starts from the date of ex-parte judgment and decree and not from the date of knowledge. On the other hand, the defendant having been duly served in the suit, is deemed to have knowledge of the ex-parte judgment and decree from the very first day. Thus, application moved by defendant is also barred by limitation.

For the reasons aforesaid, the instant revision petition is allowed. Impugned order Annexure P-6 passed by the trial court is set aside and application Annexure P-4 moved by the defendant-respondent is dismissed.