Surinder Kaur vs Pawan Kumar and Another

Paramjeet Singh, J.—Present revision petition has been filed under Article 227 of the Constitution of India for setting aside ex-parte judgment and decree dated 07.06.2003 (Annexure P/1), order dated 10.01.2009 (Annexure P/3) passed by learned Civil Judge (Junior Division) Dasuya and order dated 19.03.2012 (Annexure P/4) passed by learned Additional District Judge, Hoshiarpur, whereby the application under Order 9 Rule 13 read with Section 151 CPC has been dismissed. Brief facts of the case are that respondent no. 1-plaintiff filed a suit for possession against the defendants. Notice of the suit was given to the defendants. In spite of service of notice, none appeared out of the defendants and ultimately, the petitioner along with defendant no. 2 were proceeded against ex parte. Therefore, vide order dated 07.06.2003, ex parte decree was passed.

It is the case of the petitioner that respondent/plaintiff Pawan Kumar got ex parte judgment and decree by misleading the court. The petitioner was neither served by way of munadi nor publication etc. as required under Order 5 Rules 12, 17 and 19 C.P.C. It is further averred that the petitioner came to know about the ex parte judgment and decree dated 07.06.2003, on 27.11.2003 when the process server was going to effect munadi in the execution of the ex parte judgment and decree. It is specifically contended that the petitioner was neither served in accordance with law nor she had the knowledge of proceedings and as such, the ex-parte decree is liable to be set aside.

The application of the petitioner-defendant was contested by the respondent-plaintiff. The learned trial Court framed the issues and parties were permitted to lead evidence. The learned trial Court dismissed the application and declined to set aside the ex-parte judgment and decree in question. It was noticed by the learned trial Court that the petitioner-defendant had refused to accept notice and after that court had ordered to effect munadi for service of the applicant vide order dated 19.12.2002 and the munadi was duly effected against the defendant. As such there was no reason for the Court to set aside the ex-parte judgment and decree. As already noticed, appeal against the order dated 10.01.2009 has also been dismissed by the learned First Appellate Court.

I have heard learned counsel for the parties and perused the judgments of the Courts below.

It has come in the evidence that the petitioner came to know about passing of the ex parte decree on 27.11.2003 when the process server was going to effect munadi. 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 adopted. The petitioner immediately after coming into her notice about passing of the ex parte decree dated 07.06.2003, filed an application for setting aside the ex-parte decree. It is important to note here that where no one appears, then the Court should afford opportunity to the defendants and intimation regarding the same should be given and adequate opportunity should also be afforded to the parties to lead evidence. Moreover, the respondent-plaintiff can be compensated by awarding some amount as costs for the inconvenience caused. In view of this, present petition is allowed. The impugned ex-parte judgment and decree dated 07.06.2003 (Annexure P/1), order dated 10.01.2009 (Annexure P/3)passed by learned Civil Judge (Junior Division) Dasuya and order dated 19.03.2012 (Annexure P/4) passed by learned Additional District Judge, Hoshiarpur are set aside, subject to payment of Rs. 20,000/- as costs which shall be paid to the respondent-plaintiff. Parties through their counsel are directed to appear before the learned Trial Court on 19.08.2013 and the trial Court will proceed further with the case from the stage when ex parte proceedings were ordered.