Harbhajan Singh and Another vs Tarlok Singh

L.N. Mittal, J.—Defendants have filed this revision petition u/s 115 of CPC (in short, C.P.C.) assailing order dated 18.11.1997 (Annexure P-3) passed by trial Court and judgment dated 26.04.2002 (Annexure P-5) passed by learned Appellate Court. Respondent-plaintiff Tarlok Singh filed suit against defendants-petitioners who are sons of the plaintiff-respondent. In the suit, the plaintiff challenged earlier consent judgment and decree dated 30.11.1993 passed against the respondent and in favour of the petitioners allegedly having been obtained by impersonation. Petitioners were proceeded against ex parte in the suit filed by the respondent. The said suit was decreed ex-parte vide judgment and decree dated 16.08.1995 (Annexures P-1 & P-2). Defendants filed application under Order 9 Rule 13 C.P.C. for setting aside the said ex-parte judgment and decree. Learned trial Court vide order dated 18.11.1997 (Annexure P-3) dismissed the said application. Appeal against the said order preferred by the defendants has been dismissed by learned Additional District Judge, Patiala vide judgment dated 26.04.2002 (Annexure P-5). Feeling aggrieved, defendants have filed the instant petition to challenge order/judgment (Annexures P-3 and P-5).

None appeared for respondent on the last date of hearing. The case was adjourned for today and office was directed to inform counsel for respondent. Accordingly, counsel for the respondent-plaintiff has been informed However, in spite thereof, none has appeared for respondent-plaintiff even today. Resultantly, I have heard learned counsel for the petitioners/defendants and perused the case today including files of the Courts below with his assistance.

Learned counsel for the petitioners contended that there was no order of the trial Court in the suit for issuing summons by registered post whereas there is no report of any Process Server on ordinary summons that the defendants were evading service. It was also argued that defendants were served by publication in newspaper published on 28.11.1994 for 05.12.1994 and therefore, there was no sufficient time for the defendants to put in appearance.

I have carefully considered the aforesaid contentions, but the same cannot be accepted.

Perusal of the suit file reveals that notice issued to defendants by Registered Post was received unserved with the report that the defendants were not residing on the given address. Thereupon, plaintiff filed an affidavit affirming that defendants are residing at the given address and the trial Court formed an opinion that the defendants were evading service and could not be served through ordinary process. Accordingly, defendants were ordered to be summoned by publication in newspaper. In spite of service by publication in newspaper, the defendants did not appear and were, therefore, proceeded against ex-parte.

If ordinary summons were not received back although purporting to have been issued as per note of the Ahmad on the order sheet of the trial Court and if notice sent by Registered Post was received unserved on the ground that defendants were not residing there, although according to the affidavit filed by the plaintiff, the defendants were residing at the given address, it cannot be said that the trial Court committed any illegality in ordering substituted service by publication in newspaper after forming opinion that the defendants were evading service and could not be served in ordinary course. In this respect, it is highly significant to notice that in the suit filed by the defendants themselves against the present plaintiff wherein alleged consent decree dated 30.11.1993 was passed, the defendants (present petitioners) had given the same address which was given in the instant suit by the respondent-plaintiff. Consequently, the report on the Registered Covers that defendants were not residing at the given address clearly depicted that they were intentionally evading service. Consequently, substituted service by publication in newspaper was valid service.

It cannot be said that there was no sufficient time for the defendants to put in appearance on 05.12.1994 pursuant to publication of notice in newspaper dated 28.11.1994. The defendants were residing in a Dera in Samana and the Court was also at Samana. Consequently, period of one week could not be said to be insufficient for the defendants to have put in appearance before the trial Court. Learned Presiding Officer happened to be on leave on 05.12.1994 and the case was, therefore, taken up on 06.12.1994 i.e. next day, but the defendants did not appear even on 06.12.1994 or on subsequent dates of hearing till the suit was decreed ex-parte on 16.08.1995 i.e. for more than 8 months after 05.12.1994. Consequently the contention that the defendants had no sufficient time to put in appearance, cannot be accepted.

Both the Courts below have come to concurrent finding of fact that there is no sufficient ground to set aside the ex-parte judgment and decree. The said finding is not shown to be suffering from any perversity, illegality or jurisdictional error nor it is based on mis-reading or mis-appreciation of the evidence on record. Consequently, the said finding does not warrant interference in exercise of limited revisional jurisdiction u/s 115 C.P.C. The revision petition is thus found to be merit less and is, therefore, dismissed.