Gurnam Singh vs Gurcharan Singh and Others

L.N. Mittal, J.

C.M. No. 15298-CII of 2013:

Application is allowed and annexed reply on behalf of respondents no. 1 and 2 to C.M. No. 282-C-II of 2013 is taken on record, subject to all just exceptions.

C.M. No. 282-C-II of 2013:

This is application for impleading legal representatives of some of the deceased defendants, out of whom some died before filing of the suit, and some died during pendency of the suit. However, instant revision petition has been filed by defendant no. 10 Gurnam Singh to challenge the orders of the courts below, whereby his application for setting aside ex-parte judgment and decree has been dismissed. Consequently, impleadment of legal representatives of other defendants is not required for the disposal of this revision petition. Accordingly, the instant application is disposed of.

Main Case:

Defendant no. 10 Gurnam Singh has filed this revision petition under Article 227 of the Constitution of India impugning order dated 29.07.2009 (Annexure P-8) passed by the trial court and judgment dated 11.09.2012 (Annexure P-10) passed by the lower appellate court, thereby dismissing application Annexure P-4 filed by the petitioner for setting aside ex-parte judgment and decree dated 09.02.1994 (Annexures P-1 and P-2).

Suit instituted by respondents no. 1 and 2/plaintiffs was decreed ex-parte vide judgment and decree dated 09.02.1994 (Annexures P-1 and P-2).

Defendant no. 10-petitioner initially filed application dated 28.09.1994 (Annexure P-3) for setting aside the ex-parte judgment and decree alleging that he had learnt on 27.09.1994 only from Mangu Singh (cultivating the land of the petitioner) that plaintiffs had secured the aforesaid ex-parte judgment and decree. It was alleged that defendant no. 10-petitioner was never served in the suit. His service by publication in newspaper - ''Daily Milap'' was not valid service as it did not have circulation in the concerned area nor copy of the newspaper was sent to the petitioner at his residence in Village or at Chandigarh, where he was occasionally residing. In undated application (Annexure P-4) filed on 25.05.1998, the aforesaid version was reiterated and it was further alleged that application (Annexure P-3) fixed for 21.12.1995 for summoning of original suit record was not traceable on 21.12.1995 and thereafter, and therefore, fresh application Annexure P-4 was moved.

Both the courts below have dismissed the application Annexure P-4 filed by the petitioner, who has, therefore, filed this revision petition to challenge the orders of the courts below.

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

Counsel for the petitioner reiterated that petitioner was residing in Chandigarh, whereas he was sent summons in the suit at Village Phooli, where he was not residing and thus, he was not properly served.

The aforesaid contention cannot be accepted. It has simply been alleged by the petitioner in applications Annexures P-3 and P-4 that he was occasionally residing in Chandigarh. The word ''occasionally'' is very significant. It would depict that the petitioner was actually residing in Village and had occasionally visited Chandigarh. Moreover, the petitioner did not allege in the applications as to since when he started residing occasionally in Chandigarh. It has also not been alleged in the applications that the petitioner was residing in Chandigarh occasionally or otherwise during the pendency of the suit. On the other hand, it has come in cross-examination of the petitioner himself that he had his ration-card in Village Phooli and was also listed as voter in the said Village. The plaintiffs have examined the Process Server, who had taken the summons in the suit to the petitioner in his Village. The Process Server reported on the summons for 06.12.1991 that defendant no. 10 was not found present at his house. Then summon sent for 06.02.1992 was received with the report of Process Server that defendant no. 10 was evading service. It was reported specifically that servant of defendant no. 10 told the Process Server that defendant no. 10 was present in the house, but later on, the Process Server was informed that defendant no. 10-petitioner was not present at the house. It thus became evident that the petitioner was intentionally evading service and had knowledge of the suit. The aforesaid report of the Process Server was attested by Joginder Singh - Chowkidar, who has also been examined as witness by the plaintiffs.

In view of the aforesaid circumstances, it cannot be said that the petitioner had not been served properly in the suit. Consequently, there was no sufficient ground for setting aside the ex-parte judgment and decree.

It may be added that in addition to the aforesaid, the courts below have also noticed other reasons for dismissing the application of defendant no. 10-petitioner.

Before parting with the order, it may be added that after application Annexure P-3 filed by the petitioner was not traceable in the Court since 21.12.1995 onwards, the petitioner could not have waited for almost 21/2 years before filing application Annexure P-4 on 25.05.1998. For the reasons aforesaid, I find that the impugned orders of the courts below do not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition lacks any merit and is accordingly dismissed.