M/s Roop Rai Timber Works vs Kamaljit Kaur

M.M. Punchhi, J.—The Plaintiff Petitioners filed a suit for declaration that the receipt dated 11-11-1982 executed by them in favour of the Defendant-Respondent was illegal, void fraudulent, involuntary and without consideration and was thus not binding on the Plaintiff Petitioners The suit was registered on 24-1-1983 and the Defendant-Respondent was ordered to be summoned for 30.3.1983. According to the record, she was served for the said date and one Devinder Singh appeared as her General Attorney. The case was adjourned to 12-4-1983 for written statement. On 12-4-1983 as well Devinder Singh General Attorney, put in appearance for the Defendant Respondent The matter was again adjourned to 22-4-1983 On that date, no one appeared for the Defendant Respondent and thus ex-parte proceedings were taken against her. Ultimately, an issue was framed and the case was adjourned to 12-8-1983 ex-parte evidence of the Plaintiff Petitioners. It was on that date that the Defendant Respondent filed an application for setting aside ex-parte proceedings.

The learned trial Judge framed the usual issue whether there was sufficient cause to set aside the ex parte proceedings against the Defendant Respondent. After recording evidence, the learned Judge took the view that the oral evidence of the process-server had to be believed against the Defendant-Respondent, for her denial was not trustworthy, especially when the signatures appearing on the application and the signatures appearing on the summons appeared to be similar. He further took the view that the presence of Devinder Singh for the Defendant-Respondent on the two dates fixed in the case showed that she had been served and that her statement that Devinder Singh was not her Attorney could not be believed in the absence of documentary evidence in that regard. Yet, the learned trial Judge taking the view that the Defendant-Respondent was otherwise entitled to participate in the trial from the stage when the Plaintiffs evidence had yet to begin, no damage was going to be caused to the Plaintiff-Petitioners if the ex-parte proceedings are set aside and the Defendant-Respondent is permitted to file her written statement also. He thus, in the circumstances, allowed the prayer by awarding Rs. 100/- as costs to the Plaintiff Petitioners. The Plaintiff-Petitioners are aggrieved against the said order.

Having heard the Learned Counsel for the parties, I am of the view that the order need be maintained though on different grounds. When for the first time on 30.3.1983, Devinder Singh bad put in appearance, the Court did not insist on his producing the power of Attorney in original or even an attested copy thereof. His purporting to be the General Attorney of the Defendant-Respondent was accepted by the bare word of mouth. That was highly an unsatisfactory way of taking the Defendant-Respondent to be present sub-stitutedly for two dates. On this aspect, there is miscarriage of justice for the Defendant-Respondent could rot be put to the proof to show that Devinder Singh had not been authorised by her to put in her appearance on her behalf. Rather it was the duty of the Court to see that Devinder Singh had put in appearance duly authorised on her behalf. In the absence of such caution having been exercised, this factor cannot weight against the Defendant-Respondent.

With regard to her assertion that she had not been served and the counter assertion of the Process-server that she had been served, the trial Judge, if he was of the view that similarity of signatures was the determining factor, should have insisted on the production of an Expert to determine whether the signatures tally In the situation, he should have leaned in favour of accepting the word of the Defendant-Respondent, especially when she was a woman and the process-sever could have had no special means of knowing her in day-to day life. No independent eye-witness was produced by the Plaintiff Petitioners besides the Process server to show that she in fact had been served. The view of the learned trial Judge in this regard is unjust and materially irregular. On the upsetting of the view on these two grounds, the order setting aside the ex parte proceedings is justified and is in order.

Accordingly, this petition fails and is hereby dismissed. No costs.