Manmohan Soni vs Banwari Lal

Mehinder Singh Sullar, J.—The epitome of the facts, relevant for disposal of the present revision petition and emitting from the record is, that

Manmohan Soni son of Bhagwan Dass Soni-petitioner-plaintiff(for brevity ""the plaintiff'') filed the suit against Banwari Lal-respondent-

defendant(for short ""the defendant"") for a decree of possession by way of specific performance of an agreement to sell dated 08.12.2007.

As, initially the defendant did not appear to contest the suit, therefore, ex-parte proceedings were ordered against him. The suit of the plaintiff

was ultimately decreed by the trial Court, by means of ex-parte judgment and decree dated 09.03.2010.

As soon as, the defendant came to know, he moved an application for setting aside the ex-parte judgment and decree dated 09.03.2010,

invoking the provisions of Order 9 Rule 13 CPC, inter alia, pleading that neither he was duly served, nor the pendency of the suit was in his

knowledge.

The plaintiff refuted the claim of the defendant, filed the reply, in which it was claimed that the defendant was duly served. Moreover, the

pendency of the suit was in his knowledge. Thus, the plaintiff prayed for dismissal of the application.

In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the application on 26.04.2011 and

the parties to the lis produced their respective evidence:-

(i) Whether the ex parte judgment & decree dated 9.3.2010 passed by the Court of Mrs. Girish, PCS, the then Ld.Civil Judge (JD), Abohar, in

case titled as Manmohan Soni v. Banwari Lal is to be set aside? OPA

(ii) Relief.

The trial Court accepted the application, set aside the ex-parte judgment and decree dated 09.03.2010 and the defendant was allowed to

contest the suit in question, by virtue of impugned order dated 25.07.2011.

Aggrieved by the impugned decision of the trial Court, the plaintiff preferred the present revision petition, under Article 227 of the Constitution

of India.

After hearing the learned counsel for the petitioner, going through the record with his valuable help and after considering the entire matter deeply,

to my mind, there is no merit in the instant revision petition in this context.

Ex facie, the argument of the learned counsel that since, the defendant was duly served in the main suit and his application was accepted on

technical grounds, so, the trial Court committed a legal mistake in this relevant connection, is neither tenable nor the observations of this Court in

case Gurpartap Singh v. Rajinder Kumar and another 1 (2007) 148 P.L.R. 278, are at all applicable to the facts of the present case, wherein, the

petitioner (therein) himself has filed a suit for injunction, restraining the respondent-landlord, from interfering in the peaceful possession except in

due course of law. In that suit, written statement was filed, in which it was specifically mentioned that a petition u/s 13 of the Punjab Urban Rent

Restriction Act, 1949 has been moved against the petitioner and the next date of hearing was also mentioned therein. So, on the peculiar facts and

in the special circumstances of that case, it was observed that the defendant had the knowledge of the proceedings and did hot intentionally appear

on the date of hearing despite notice and sufficient time to appear and to answer the plaint, the court will not set aside the ex-parte decree merely

on the ground of an irregularity in the service of summons.

Hardly, there is any dispute with regard to the aforesaid observations, but the same would not come to the rescue of the petitioner in the

present controversy, as there is no evidence, much less cogent, on record to prove that the defendant had the knowledge of the pendency of the

suit.

As is evident from the record that, the trial Court allowed both the parties, to produce evidence, in order to substantiate their pleaded stands.

Having scanned the evidence in the right perspective, the trial Court has recorded a finding of fact that the defendant was not duly served in the

main suit and there was noncompliance of Order 5 Rule 17 CPC. Therefore, the contrary arguments of the learned counsel for the petitioner

stricto sensu"" deserve to be and are hereby repelled under the present set of circumstances.

No other meaningful argument has been raised by the learned counsel for the petitioner-plaintiff, to assail the findings of the trial Court. All the

remaining contentions, relatable to the appreciation of evidence, now sought to be urged on his behalf, have already been duly considered and

dealt with by the trial Court, in this relevant behalf.

Moreover, the trial Court has rightly accepted the plea of the defendant, by way of impugned order dated 25.07.2011, which in substance is,

as under:-

I have heard the rival submissions and perused the record carefully. The applicant Banwari Lal has filed the present application seeking the setting

aside ex parte judgment and decree dated 9.3.2010 passed by Mrs. Girish, PCS, the then Ld. Civil Judge (Jr. Div.), Abohar in suit titled

Manmohan Soni v. Banwari Lal"",. The applicant Banwari Lal stepped into the witness box as AW-1, AW-2 Machhi Ram and AW-3 Rinku have

been examined by the applicant to corroborate his plea. The cross examination of the AW-3 Rinku no doubt shows that he has stated that

applicant Banwari Lao had refused to accept the summons. It appears that the witness has been won over by the respondent. No doubt, the

respondent has examined RW-1 Raj Kumar Process Server and RW-2 Babu Ram Process Server who proved report of refusal by the applicant

Banwari Lal upon the summons as well as proved the report of Munadi, yet, in my view the service of Banwari Lal applicant (the defendant in suit)

is not proper. The perusal of the suit file shows that the summons through ordinary process which were issued by Court for service upon applicant

Banwari Lai have been received back with the report of refusal. As per provision of Order 5 Rule 12 CPC, the service upon a defendant shall be

made in person. As per provision of Order 5 Rule 17 CPC, which lays down the procedure when defendant refuses to accept the summons or

cannot be found is where the defendant refused to sign the acknowledgment, the serving officer shall affix a copy of the summon on the outer door

or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business. The serving official i.e., the Process

Server is required to mention on the report regarding service that he knew the defendant personally or in case he does not know the defendant

personally, the defendant was identified by some person. In the present case, none of the summons which were served upon the defendant by

Process Server RW-1 Raj Kumar and RW-2 Babu Ram bear the report of the Process Server that they knew the defendant Banwari Lal

personally, nor there is any report regarding any person having identified the defendant Banwari Lal to the Process Server. Since this material

requirement is missing, therefore, this Court is of the opinion that service upon the defendant Banwari Lal is not proper. Furthermore, no order was

made by the Court to serve the summons upon the defendant through registered post. Keeping in view the above discussion where it is held that

service upon the defendant Banwari Lal is not proper and further keeping in view the principle that every opportunity should be given to a party to

contest the case on merits and technicality of law should not come in way of advancement of justice, this Court is of the view that ex parte

judgment and decree dated 9.3.2010 is liable to be dismissed and is accordingly set aside. Issue No.1 is accordingly decided in favour of the

applicant and against the respondent.

As a result of my findings returned on above issue, the application filed by the applicant Banwari Lal under Order 9 Rule 13 CPC is allowed and

ex parte judgment and decree dated 09.03.2010 is set aside.

Meaning thereby, the trial Court has recorded the valid grounds in the impugned order in this respect. Such order, containing the valid reasons,

cannot legally be set aside, in exercise of limited revisional jurisdiction of this Court, as contemplated under Article 227 of the Constitution of India,

unless the same is perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for

the petitioner, so, the impugned order deserves to be and is hereby maintained in the obtaining circumstances of the case.

In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition is hereby dismissed as such.

C.M. No.20005-CII of 2011 in Civil Revision No.5023 of 2011

Present: Mr. Ashok Kumar for the Petitioner.

Application is allowed as prayed for.