Daljit Singh & Anr. v. Mohinder Singh

Mr. B.S. Walia, Advocate for the respondent. Rakesh Kumar Garg, J. CM No.21319-CII of 2009 Application is allowed subject to all just exceptions. CR No.5123 of 2009(O&M) This is defendants' revision petition challenging the impugned orders dated 14.6.2006 (Annexure P-8) and 6.4.2009 (Annexure P-9) passed by the Additional Civil Judge (Sr. Division), Jagraon and the Additional District Judge, Ludhiana respectively whereby his application under Order 9 Rule 13 CPC for setting aside the ex parte decree dated

19.1.2004 passed in Civil Suit No. 849 of 26.11.2002 was rejected. Brief facts of this revision petition are that the respondent filed a suit for recovery against the petitioners submitting therein that petitioner No.2 was a firm carrying on the business of Merchants and Commission Agents at Jagraon and petitioner No.1 was its proprietor. The firm petitioner No.2 through its proprietor Sh.Daljit Singh, (petitioner No.1), took a loan amount vide a valid writing dated 1.12.1998 executed by petitioner No.1 on behalf of petitioner No.2-firm in lieu of the cash consideration. The CR No.5123 of 2009(O&M) 2 aforesaid loan amount was agreed to be repaid to the respondent after six months along with interest. Since the petitioner failed to repay the loan amount, the suit for recovery was filed. Upon notice, the petitioners failed to put in appearance and were proceeded against ex parte. The Civil Judge (Jr.Division), Jagraon on the basis of ex parte evidence, decreed the suit vide his judgment dated 19.1.2004 against the petitioners. Petitioners filed an application under Order 9 Rule 13 CPC read with Section 151 CPC for setting aside the aforesaid ex parte decree submitting therein that the firm of the petitioner was closed in the year 1998 and he had joined the police Department in the year 2000 and since then he was serving at various places of his posting in Punjab and his address was wrongly given by the plaintiff-respondent in the main suit and the plaintiff-respondent obtained a wrong report on the summons in connivance with the process server which resulted into an ex parte decree dated 19.1.2004. It was the assertion of the petitioner that he was never served in the aforesaid suit and therefore, the ex parte decree dated

19.1.2004 was liable to be set aside and the petitioner was entitled to defend the suit. The aforesaid application was contested by the plaintiff- respondent submitting that the petitioners were served in the suit in accordance with law and there was no ground to set aside the ex parte decree against them. It was also submitted in the reply that the petitioner had been even proceeded against ex parte in execution proceedings and it is only when his salary was attached, the present application was filed and therefore, in the absence of any valid reason, the ex parte decree dated

19.1.2004 was not liable to be set aside and the present application CR No.5123 of 2009(O&M) 3 deserved to be dismissed. On the basis of the pleadings of the parties and after hearing learned counsel for the parties, the trial Court found that the petitioner was duly served by way of Munadi and affixation and keeping in view the report of the process server which was duly counter-signed by the Chowkidar of the area and in view of the service effected upon the petitioner by way of Munadi and affixation, a presumption was drawn in favour of the plaintiff- respondent that the petitioner was duly served and thereafter the petitioner was proceeded against ex parte. It may also be noticed that on the basis of the record, the trial Court found that the summons were issued to the petitioner on 18.3.2002 and these summons were received back with the report of refusal, as such the defendant-petitioner was ordered to be served by way of Munadi and affixation and he was duly served by Munadi and affixation for 14.12.2002 and thereafter, he was proceeded against ex parte. It was also noticed that the petitioner has not denied the fact that he was also proprietor of petitioner No.2 firm and the Munadi and affixation was ordered to be issued against him at the address of the firm. As per report on the file, the summons were duly affixed outside the shop of the defendant-petitioner but he failed to appear in the case. Aggrieved from the order dated 14.12.2006 of the trial Court, the petitioner filed an appeal which was also dismissed by the Additional District Judge, Ludhiana vide impugned order dated 6.4.2009. While dismissing the appeal filed by the petitioner, the Additional District Judge observed as under: “After considering the rival contentions of learned counsel for the parties and perusing the file, it is clear that the summons were sent to the appellant on the address of village Galib Kalan, which has been received CR No.5123 of 2009(O&M) 4 back with the report of refusal. Thereafter, the Court ordered to serve the appellant through munadi and affixation and munadi was effected on 14.12.2006 and thereafter, he was proceeded against ex parte. The appellant has not denied that earlier he was commission agent in Jagraon. The summons were also sent and affixed outside of the shop of the appellant but he did not appear despite the service. The certificate placed on the file by the appellant issued by Arhtia Association, Jagroan is not helpful for him wherein it is stated that the appellant is not working as Commission Agent after May 1999. The appellant was served on his address by way of beat of drum. It is not disputed by the appellant that he is resident of village Galib Kalan. This fact clear from the application U/O 9 Rule 13 CPC and affidavit attached with it by the appellant. Moreover, in the grounds of appeal has been shows his address as village Galib Kalan. So at this stage he cannot back of from the fact that he is not residing at village Galib Kalan. The citations relied upon by the learned counsel for the appellant is not applicable to the case in hands and the same are distinguishable from the facts of the present case. The appellant was duly served in the suit but he did not appear despite service. As such the trial Court has rightly dismissed the application u/o 9 Rule 13 CPC. The findings of the trial Court are affirmed and upheld. Consequently, the appeal is dismissed.” Challenging the aforesaid orders passed by the Courts below, CR No.5123 of 2009(O&M) 5 learned counsel for the petitioners has vehemently argued that from the documents placed on record, it is clearly established that petitioner No.1 was permanent resident of Galib Kalan, Tehsil Jagraon, District Ludhiana . He also remained the Sarpanch of that village. He had left the business of Commission Agent in the year 1998 and had joined the police service in the year 2000. All these facts were to the knowledge of the responent. He has further argued that a perusal of the report dated 12.1.2002 clearly shows that the trial Court was aware of the fact that the petitioner could have been served on the address of his posting in District Tarn Taran and the respondent was also well aware about this fact and therefore, the trial Court erred in not appreciating this fact that the petitioner could have been served at the place of his joining or at his permanent address and and thus, patent error has been committed while rejecting his application under Order 9 Rule 13. However, on the other hand, learned counsel for the respondent has vehemently argued that on the basis of the record before it, the Courts below have found that the petitioner was duly served in the suit and no fault can be found in the order of the trial Court while passing the ex parte decree dated 19.1.2004 and therefore, the revision petition is without any merit and is liable to be dismissed. I have heard learned counsel for the parties and perused the record of this petition. It is not in dispute that the petitioner was doing the business of Commission Agent in the name of his firm at the given address. It is also not in dispute that address of the petitioner and the firm was not wrong whereas in fact the contention of the petitioner is that he had left the business in the year 1998 and had joined service and therefore, he could have been served either at his permanent address or at the place of his CR No.5123 of 2009(O&M) 6 posting which was not done. However, contention raised on behalf of the petitioner is false. xBoth the Courts below on the basis of the record have recorded that summons were sent to the petitioner at his village address, however, the same were received back with the report of refusal and thereafter, the Court had ordered to serve the petitioner by way of Munadi and affixation which was effected at his last known address of the firm, the correctness of which is not denied. Learned counsel for the petitioners has not disputed the aforesaid findings of the Courts below. In fact there is no challenge to the aforesaid findings of the Courts below even in the revision petition itself. Thus, I find no merit in this petition. Dismissed. February 8, 2010 (RAKESH KUMAR GARG) JUDGE