Karnail Singh vs Jagdish Kaur and Others

R.S. Mongia, J.—One Norati had two daughters, namely, Niranjan Kaur and Bachan Kaur and one son named Bhagwant Singh, who had predeceased her. Bhagwant Singh had a daughter Jagdish Kaur and his wife was Ishar Kaur. After the death of Bhagwant Singh and Ishar Kaur, Jagdish Kaur filed a civil suit on September 27, 1974, against Bachan Kaur, Niranjan Kaur, Gurnek Singh, Pritam Singh, Sant Singh, Malkiat Singh, and Karnail Singh for joint possession of l/3rd share of the land described in the plaint, total area being 124 kanals. The suit was filed with the allegations that Smt. Norati widow of Gurbux Singh was owner in possession of the suit land and she had died about three years prior to the filing of the suit. Norati had two daughters, namely Niranjan Kaur and Bachan Kaur and one son Bhagwant Singh, who had predeceased her leaving behind Jagdish Kaur and Ishar Kaur. It was further alleged that at the time of death of Norati, the plaintiffs were having equal rights to succeed in the estates of Norati along with Niranjan Kaur and Bachan Kaur. It was further alleged that after the death of Norati, Bachan Kaur and Niranjan Kaur and some other defendants had taken wrongful possession of the suit land whereas defendant No. 3 Gurnek Singh son of Niranjan Singh was the mortgagee of the part of the suit land. Only Bachan Kaur contested the suit whereas other defendants were proceeded against ex parte. Bachan Kaur had taken a defence that Norati had gifted her 88 kanals out of the total land and she had become owner of that land by virtue of the written gift deed. This plea of Bachan Kaur was accepted by the trial Court that out of 124 kanals of land, 88 kanals of land was of Bachan Kaur on the basis of the gift deed. Decrees qua l/3rd share of the rest of the land measuring 38 kanals 19 Marias comprised in Khasra No. 16//137(7-B), Khewat Khatoni Khasra No. 16//18/2(4-16), 19/1(0-8), 23/1(2-6), 24/1/1(0-2), Khasra No. 16//17/l(0-8), Khasra No. 8//21(3-19), 24(0-14), ll//l/2(2-17) and 3(8-0), 4(7-1), was granted in favour of the plaintiff on February 9, 1978.

Karnail Singh one of the defendants filed an application under Order 9, Rule 13 of the CPC on August 19, 1978, for setting aside the ex-parte decree against him on the allegation that he had not been duly served in the suit. The trial Court as well as the appellate court came to the conclusion that no case had been made out for setting aside the ex-parte decree, hence the present petition.

Learned counsel for the petitioner argued that both the courts below have held that along with the summons, the copy of the plaint was not served on the present petitioner Karnail Singh and if that is so, the petitioner cannot be deemed to have been duly served in the suit and consequently, the ex-parte decree qua him was liable to be set aside. In support of his contention, learned counsel relied upon a Division Bench Judgment of this Court reported as Babu Ram v. Satish Kumar Rawal 1991 100 P.L.R. 234. It may also be noticed that the appellate Court had observed that the application under Order 9, Rule 13 C.P.C. was time-barred as nothing was said in the application as to how the petitioner came to know about the ex-parte decree on August 19, 1978. It may further be observed here that when this revision petition was admitted way back in the year 1982, the dispossession of the petitioner was stayed.

Learned counsel for the respondent-plaintiff, however, argued that the statement of the process server in his cross-examination where he stated that the petitioner had not been given the copy of the plaint cannot be believed in asmuchas while he gave the copies of the plaint to the other defendants, which are mentioned in the his report Ex. P2, there was no reason as to why he would not give the copy of the plaint to the petitioner. This according to the counsel, was all a made up story.

After hearing learned counsel for the parties, I am of the view (that on appreciation of evidence, the Courts below have come to the conclusion that the service of the summons on the petitioner was without the copy of the plaint. This finding of fact cannot be altered in a revision petition. It has been held in the Division Bench judgment (supra) cited by the learned counsel for the petitioner that the provisions of Order 5 Rule 2 C.P.C. were mandatory in nature which provide the attachment of a copy of plaint along with the summons. It was held that no summons can be regarded to have been duly served unless a copy of the plaint is also served on the party. Due service means service of summons along with the plaint. In this view of the matter, it cannot be said that the petitioner was served in accordance with law regarding the suit. Second proviso to Order 9, Rule 13 C.P.C. would not come into play in such a case because it is not a case of mere irregularity in service of summons. If a defendant has a notice of the date of hearing and sufficient time to appear to answer the plaintiffs claim, then minor irregularity here and there can be over-looked but the defendant in such a case must know what the plaintiffs claim is and that can be only known if the copy of the plaint is attached with the summons, Reliance by the appellate court on the second proviso to Order 9, Rule 13 C.P.C. in the facts and circumstances of the case is not. well based. So far as the question of limitation is concerned suffice it to say that in the application, the petitioner had stated that he had come to know about the ex-parte decree on February 9, 1978, and in his statement he stated that he had come to know about the same from the application for execution of the decree. In these circumstances, it could not be said that the application was time-barred. As observed above, the ex-parte decree is dated February 9, 1978, whereas application under Order 9, Rule 13 C.P.C. was filed on August 19, 1978.

For the foregoing reasons, I allow this revision petition and set aside the orders of the courts below. Resultantly, the decree passed by the trial Court dated February 9, 1978, qua petitioner Karnail Singh alone will stand set aside. So far as the other parties are concerned, it will remain binding on them. The case is remanded back to the trial Court with a direction that since this is a very old matter and is being remanded now, the suit be disposed of expeditiously preferably within six months of the date the parties appear in the trial Court. The parties through their counsel are directed to appear before the trial Court on October 6, 1998, to get further directions in the matter. Copy of the judgment and other record be sent to the trial Court.