Pawan Kumar vs Rajinder Kumar and another

Defendant No.2-petitioner is in the revision petition against dismissal of his application for setting aside the ex parte judgment and decree dated

04.01.2007 affirmed in appeal by the learned First Appellate Court.

Some facts are required to be noticed. Raj Rani, defendant No.1 in the civil suit was owner of the property in dispute. She executed a registered sale

deed in favour of petitioner-defendant No.2, Pawan Kumar on 10.01.2003 on receipt of sale consideration and possession was delivered. It is a semi

constructed plot. The plaintiff-respondent Rajinder Kumar claiming to be tenant on the basis of rent note dated 27.10.2000 filed a civil suit on

24.02.2006 for permanent injunction. It was pleaded that Raj Rani had executed a rent note through which the property in dispute was given on lease

@ Rs.1200/- per month and Raj Rani has received an advance of Rs.1,00,000/- at the time of execution of the rent note. It was further pleaded that

Rs.200/- per month is the rent payable whereas Rs.1,000/- per month is to be adjusted against the advance. Raj Rani, defendant No.1 appeared

pursuant to the notice issued whereas notice issued to defendant No.2 was received back with a report of refusal. Report of refusal was signed by

Davinder Kumar as a witness who is brother of Rajinder Kumar, the plaintiff in the suit and respondent No.1, herein. Sucha Singh, the process server

made a report of refusal. The Court ordered that the petitioner-defendant No.2 to be served through munadi-local proclamation by beat of drums. The

petitioner was directed to appear on 24.03.2006. On careful reading of the report of munadi proves that it was entrusted to the aforesaid Sucha Singh,

process server, who is alleged to have carried out the munadi by beat of drum and loud voice in the area. Satinder Singh had signed the report as a

witness of the munadi having been carried out. On the basis of the aforesaid report, ex parte proceedings were taken against defendant No.2-

petitioner. Raj Rani, defendant No.1 filed a written statement choosing not to contest the suit. The suit against Raj Rani, defendant No.1 was

withdrawn on 25.03.2006. After the ex parte proceedings, civil suit was decreed on 04.01.2007.

Respondent No.1, Rajinder Kumar served a caveat on the petitioner dated 18.03.2009 which was received on 20.03.2009 claiming that he has got a

judgment and decree in his favour. Still further, Rajinder Kumar, respondent No.1 also filed a police complaint as he was trying to raise some

construction which was objected to by the petitioner herein. Ultimately, a FIR was registered and in criminal case, petitioner has been acquitted vide

judgment dated 05.06.2015. The petitioner on coming to know of the ex parte judgment and decree filed an application for setting aside the same

under Order 9 Rule 13, CPC. The application was contested. Parties were allowed to lead the evidence. Both the Courts below have dismissed the

application and refused to set aside ex parte decree.

Learned counsel for the petitioner has submitted that the judgments of the Courts below are erroneous as Sucha Singh, the process server who

submitted a report of refusal on the summons and also carried out the munadi i.e. local proclamation, has not been examined. He has further submitted

that Satinder Singh who was witness of the munadi has submitted that his signatures were obtained on the pretext that summons have been sent to

him. Satinder Singh has further stated that his signatures were obtained when the report of the munadi was blank and thereafter report was written.

On the other hand, learned counsel for the respondent has vehemently contended that both the Courts below have examined this issue in detail and

therefore, this Court should not interfere with the finding of fact.

This Court has considered the submission and with the able assistance of learned counsel for the parties has gone through the paper book.

Learned Courts have overlooked certain startling facts.

First report of refusal dated 13.03.2006 is witnessed by none other than the brother of Rajinder Kumar i.e. Davinder Kumar. It is apparent that Sucha

Singh, the process server rather than performing his duty honestly was playing in the hands of one of the interested party. The Court appoints process

servers to perform their duties diligently and independently. The Courts should be careful whenever a report of refusal is received. The report of

refusal to receive summon must carefully examined. The trial Court does not appear to have applied its mind. In routine, the petitioner was ordered to

be summoned through local proclamation. At that stage, Court was further required to entrust the job of local proclamation to some other process

server so as to ensure that sincere effort is made to serve the respondent who has refused to serve the summons. However, unfortunately, the munadi

was entrusted to Sucha Singh who again submitted a report of munadi having been carried out.

Sucha Singh, the process server was not produced by the respondent to prove the report of refusal and the report of fact that the munadi was carried

out. Once there is a report of refusal, it is mandatory that process serve be summoned in the Court and examined while giving opportunity to the

applicant who has sought setting aside ex parte decree to cross-examine the process server. It is the duty of the party who is defending the ex party

judgment and decree to examine the process server. In the present case, unfortunately, Sucha Singh has not been examined.

Still further, the Courts have overlooked the fact that Davinder Kumar who was the witness of report of refusal on the summons is in fact the brother

of the plaintiff and hence, interested party. Still further, Satinder Singh has appeared for petitioner-defendant No.2 and has stated that his signatures

were obtained when there was no report of the munadi proceedings and it was later on written. In these circumstances, the Courts below ought to

have carefully examined the evidence available on the file and thereafter adjudicated upon the application under Order 9 Rule 13, CPC. A owner is

sought to be deprived of the possession. Further, it is

well settled that the party to the litigation should be given proper opportunity to contest the case on merits.

In view of the discussion made above, the orders under challenge are set aside. Ex parte judgment and decree dated 04.01.2007 is also set aside and

suit is restored to its original number.

Learned District Judge, Amritsar is directed to conduct investigation in the entire matter keeping in view particularly the conduct of Sucha Singh and

submit the report to this Court, within a period of six months.

Revision petition is allowed.