Joga Singh vs Jaswinder Singh and Others

Laxmi Narain Mittal, J.

C.M. No. 15597-CII of 2013:

Allowed as prayed for.

Main Case:

Joga Singh - one of the legal representatives (LRs.) of original plaintiff Sant Ram (since deceased) has filed this revision petition under Article

227 of the Constitution of India assailing order dated 18.04.2013 passed by the trial court, thereby allowing application filed by respondent No. 1

- defendant Jaswinder Singh under Order 9 Rule 13 of the CPC (in short - ""CPC"") for setting aside ex-parte judgment and decree dated

07.08.2008 (Annexure P-1), thereby decreeing the suit filed by Sant Ram-original plaintiff (since deceased and now represented by petitioner and

proforma respondents No. 2 and 3 as his LRs.). Defendant alleged in his application that he was not served in the suit either personally or by

substituted service. In fact, he had shifted from his native Village Dhanda in Tehsil Phillaur, District Jalandhar, at the age of about one year, on the

death of his mother and started residing with his mother''s sister in Village Rundh in Rajasthan and there, got himself registered as son of Santokh

Singh. However, in the suit, he has depicted to be resident of Village Dhanda in District Jalandhar and not of Village Rundh in Rajasthan, where he

was actually residing.

LRs. of plaintiff contested the application and controverted the averments made therein. It was alleged that the defendant refused to accept

summons in the suit and thereafter, he was served through munadi and since he did not appear, he was rightly proceeded against ex-parte in the

suit.

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

Counsel for the petitioner reiterated that the defendant was duly served in the suit, as mentioned herein above, and therefore, there was no

ground to set aside the ex-parte judgment and decree. The aforesaid contention cannot be accepted. Defendant has produced plethora of

documents in evidence to depict that he was residing in Rajasthan at least since the year 1995, whereas the suit was instituted on 17.08.2006. In

the suit, the defendant was mentioned to be resident of Village Dhanda in District Jalandhar, where, however, he was not actually residing. It is thus

apparent that defendant was not served in the suit.

In this context, it is highly significant to notice that none of the LRs. of the plaintiff (including the petitioner) stepped into the witness-box, and

therefore, adverse inference is drawn against them. On the other hand, they examined only Ashok Kumar-Naib Nazar (previously Process

Server), who proved the alleged report of refusal by the defendant. However, this official did not know the defendant personally. The witness, who

identified the defendant on the report of refusal, has not been examined as witness in the proceedings before the trial court. Consequently, from the

testimony of Ashok Kumar-Naib Nazar alone, it cannot be said that it was the defendant and not somebody else, who allegedly refused to accept

the summons. On the contrary, it is quite possible that the plaintiff might have procured the said report of refusal by presenting somebody else as

defendant. It would not be out of place to notice here that even no person from Village Dhanda has been examined to depict that defendant was

residing in that village at the time of alleged refusal of summons of the suit. Thus, practically, there is no evidence on behalf of LRs. of plaintiff to

depict that defendant was residing in Village Dhanda at the relevant time, whereas there is reliable documentary evidence besides oral evidence led

by respondent No. 1-defendant that he was residing in Rajasthan and not in Village Dhanda in District Jalandhar at the relevant time. In these

circumstances, the trial court has rightly set aside the ex-parte judgment and decree passed against the defendant because he was not duly served

in the suit.

It may also be noticed that even if two views are possible, the view taken by the trial court to set aside the ex-parte judgment and decree cannot

be interfered with in exercise of limited revisional jurisdiction, merely because another view is also possible. However, I may hasten to add that in

the instant case, the only reasonable view that is possible on the basis of material on record, is the view taken by the trial court. For the reasons

aforesaid, I find that there is no perversity, illegality or jurisdictional error in the impugned order of the trial court 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 is meritless and is

accordingly dismissed in limine.