Sri Bhagwan vs Satender Kumar

Paramjeet Singh, J.—Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 03.10.2013 (Annexure. P-2) passed by learned Additional Civil Judge (Sr. Divn.), Hathin whereby application under Order IX Rule 13 moved by the respondent for setting aside the ex parte decree dated 29.02.2008, has been allowed. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that the petitioner filed suit for possession by way of specific performance of contract against the respondent. In the said suit, the respondent could not be served with ordinary mode of service and ultimately application under Order V Rule 20 CPC was moved by the petitioner which was allowed, and summoning of the respondent through publication was ordered in newspaper ''Amar Ujala'' for 15.12.2006. However, the respondent did not appear despite publication and ultimately, he was proceeded against ex parte. Thereafter, the ex parte decree dated 29.02.2008 was passed against the respondent. The respondent moved application under Order IX Rule 13 CPC for setting aside the decree dated 29.02.2008. Upon notice, the petitioner put in appearance and alleged that the respondent was served by way of publication and he was well aware of the pendency of suit. The trial Court framed the issues and the parties led their evidence. The trial Court after considering the pleadings and evidence on record allowed the application under Order IX Rule 13 CPC while observing that substituted service through publication in the newspaper was not sent to the house of the respondent. Hence, this revision petition.

I have heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner has vehemently contended that in suit, the respondent was arrayed with following address:

Satender Kumar son of Shri Bhagwan Parshad son of Ganga Saran, resident of village Jainpur, Tehsil. Hathin, District Mewat and also at Mohalla Vidya Nagar, near Railway Crossing, Swarag Asharam Road, Hapur (U.P).

The learned counsel has further contended that in application as well affidavit filed along with it, the respondent disclosed his above mentioned address. The respondent being defendant was served through ordinary process and substituted service through publication at the aforementioned address. The learned counsel has further contended that even in written statement and reply to injunction application, the respondent has shown himself to be resident of village Jainpur, Tehsil Hathin, District Palwal.

I have considered the contentions of learned counsel for the petitioner and perused the record.

Admittedly, the suit was filed against respondent showing him to be resident of the above mentioned address. Perusal of record shows that notice issued to the respondent through ordinary process was received back with the report that address was not complete. To substantiate his case, the respondent has relied upon Identity Card Ex. A1, copy of card No. 1007540 Ex. A2 and copy of his driving licence Ex. A3 to show that his complete address is House No. 461/Kothi Sadak Ali, Hapur which was not given by the petitioner. The respondent has himself stated in the cross-examination that he frequently visits Jainpur, however, he is not permanent resident of Jainpur.

The trial Court has rightly observed that copy of newspaper in which notice was published, was required to be sent to the respondent. Furthermore, there is no evidence that the newspaper was in circulation in the area where the respondent ordinarily resides. In such circumstances, it cannot be deemed that the respondent stood served.

The trial Court has also taken note of the fact that the alleged sale agreement was entered between the parties on 17.06.2005, however, the same was attested on 02.01.2006 by the notary. The respondent has claimed that he came to know about the ex parte decree on 08.01.2009, when his counsel appeared in execution proceedings of ex parte decree dated 29.02.2008 and he filed the application under Order IX Rule 13 CPC on 12.01.2009. It is settled principle of law that the Court should take liberal approach and for advancing the cause of substantial justice, hyper-technical approach should not be taken. The respondent has filed the application under Order IX Rule 13 CPC immediately after coming into knowledge of the ex parte decree.

In view of above, I do not find any illegality or perversity in the impugned order dated 03.10.2013.

Dismissed.