Mangal Singh & Anr. v. Dalip Singh & Ors.

Mr.B.R.Mahajan,Advocate for the petitioners Mr.J.S.Thind, Advocate & Ms.R.K.Thind, Advocate for the respondents **** RAKESH KUMAR GARG J. The petitioners, who were defendants No.11 and 12 before the trial Court in Civil Suit No.263 of 12.10.1995/12.05.1997, (which was decreed ex parte against them vide judgement and decree dated

29.09.1998) have approached this Court by way of present revision petition challenging the order dated 18.11.2006 passed by Civil Judge(Jr.Divn.), Amritsar and the order dated 11.09.2009 passed by Additional District Judge, Amritsar, respectively,whereby application as well as appeal, filed by the petitioners for setting aside the aforesaid ex parte decree dated

29.09.1998 were dismissed. As per the averments, one Harnam Singh was in possession of the land measuring 73K-14M situated in village Muradpura, Tehsil & District Amritsar as occupancy tenant and subsequently became Civil Revision No.6131 of 2009(O & M) 2 owner of the same on coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. After his death, the property was inherited by his son Natha Singh, who executed a registered Will dated

05.01.1981 in favour of his son Piara Singh, who became absolute owner of the property and mutation of inheritance of Harnam Singh was also sanctioned in favour of Piara Singh. Piara Singh sold the land measuring 39K-4M in favour of the petitioners vide sale deed dated 06.07.1990. Piara Singh executed another sale deed dated 02.04.1991 with respect to 25K- 7M of land in favour of the petitioners. On 27.03.1991, Dalip Singh-respondent filed Civil Suit No.263 for declaration that he was owner of ¼ share as coparcener as the property in the hands of Harnam Singh and Natha Singh was coparcenary property. He further claimed relief of possession and permanent injunction and declaration that the Will dated 05.01.1981 in favour of Piara Singh was illegal and invalid and further that sale deed dated 06.07.1990 executed by Piara Singh in favour of the petitioners was illegal. It is further averred that in this revision petition that on

27.03.1991, notice of the aforesaid suit and stay application was ordered by Additional Senior Sub-Judge to be issued for 05.04.1991. Process Server reported that the petitioners were not residents of the village and were residing in other beat. On 05.04.1991, notice of the suit as well as stay application, was ordered to be issued for 22.04.1991. On 22.04.1991, service was effected on defendants No. 1 and 2 and notices were ordered to be issued to the remaining defendants for 14.05.1991. On 14.05.1991, registered covers were also sent to the defendants-petitioners on which report was received that the addressee have not met despite repeated visits. On the basis of the said report, the Court observed that the defendants were avoiding service and ordered that service on petitioners be effected by Munadi/affixation. On the basis of the alleged Munadi ex Civil Revision No.6131 of 2009(O & M) 3 parte proceedings were ordered against the petitioners, despite there being no specific order in this respect. Thereafter, ex parte decree dated

29.09.1998 was passed against the petitioners to the effect that land in dispute was coparcenary property and the plaintiff-respondent was owner to the extent of ¼ share as a coparcener. Though, it was held that Will executed by Natha Singh was genuine, but the same was not binding in so for as coparcenery rights of the plaintiff/respondent were concerned. It has been further averred that the aforesaid decree is wholly unsustainable as the same was obtained fraudulently by the plaintiff-respondent and without effecting service upon the petitioners. The petitioners came to know about the aforesaid ex parte decree against them only on receipt of the notice of execution proceedings and appeared on the date fixed i.e.26.08.2000. Thereafter, immediately, the petitioners filed an application under Order 9 Rule 13 CPC on 29.08.2000 for setting aside the ex parte judgement and decree dated 29.09.1998 alleging that petitioners were never served in the suit neither they refused service nor avoided service and as such ex parte decree was liable to be set aside. The application for setting aside the ex parte decree was dismissed by the courts below entirely on the basis of a wrong approach. Challenging the impugned orders, learned counsel for the petitioners had taken the Court through various zimni orders and the service reports made by the processing agency in the suit. Learned counsel for the petitioners pointed out that in the civil suit, petitioners were described as residents of village Nangali, Tehsil & District Amritsar and no summons were sent to them by the Court in pursuance of the order dated

22.04.1991 for effecting service for 14.05.1991 as the record shows that vide order dated 22.04.1991, the summons through ordinary process were sent only to defendants No.1 to 4 and not the petitioners. Learned counsel also submitted that the report of postman on the RC cannot be accepted. Civil Revision No.6131 of 2009(O & M) 4 Learned counsel further pointed out that even the Munadi, in pursuance of the order dated 14.05.1991 against the petitioners was made at a wrong address. Learned counsel pointed out that the record shows that while effecting Munadi for 06.08.1991, the address of the petitioners was given as resident of village Muradpura, Tehsil & District Amritsar, whereas in the suit as well as on the earlier occasion, the summons were being sent at the address of village Nangali. Learned counsel for the petitioners further argued that there was no material before the trial Court on 14.05.1991 to observe that petitioner was avoiding service. Simply because the petitioners were not found by the postman at the given address on repeated visits, cannot be interpreted as observed and before reaching to the aforesaid conclusion, the trial Court never examined the process server on oath. Moreover, before ordering service by way of Munadi, the trial Court did not recorded its satisfaction that the petitioners cannot be served by way of ordinary process. Not only this, even the Munadi was affected in a wrong village as shown above. Thus, in view of the aforesaid facts, it was argued that since there was no proper service upon the petitioners, the ex parte decree dated 29.09.1998 could not be sustained in the eye of law and thus the impugned orders rejecting the prayer of the petitioners for setting aside the ex parte decree were illegal and were liable to be set aside. However, learned counsel for the respondents supported the impugned orders by submitting that the application filed by the petitioners was beyond limitation because as per the statement of petitioners they had come to know about the pendency of the case through a person of village Muradpura, which means that whatever was pleaded in the application regarding the knowledge was wrong and the petitioners were having the knowledge of the ex parte decree earlier and therefore the prayer of the petitioners was rightly rejected. Civil Revision No.6131 of 2009(O & M) 5 I have heard learned counsel for the parties and perused the record of the case. It is a matter of record that in the civil suit, petitioners were arrayed as defendants No.11 and 12 and their addresses were given of Village Nangali, Tehsil & District Amritsar, whereas the Munadi was ordered to be effected at the address of village Muradpura, Tehsil & District Amritsar. Even from the summons issued for 14.05.1991 by ordinary process,it is apparent that the summons were not issued as the same were addressed to defendants No. 1 to 4 only. It is also a matter on record that the addresses given on the registered covers sent to the petitioners for

14.05.1991, postman has remarked that petitioners were not available on repeated visits. Undisputedly, the aforesaid postman was not examined. Thus, in this view of the matter, there was no occasion for the trial Court to observe in the order dated 14.05.1991 that petitioners were avoiding service. Even from the perusal of the record, I find that before ordering Munadi, the trial Court has not recorded its satisfaction to the effect that the Court is satisfied that petitioner cannot be served by way of ordinary process. There is nothing on record on the basis of which it can be held that the petitioners were having knowledge of passing of the ex parte decree before the receipt of the notice in the execution petition fixed for

26.08.2000. Learned counsel appearing on behalf of the respondent could not challenge the aforesaid factual position established on record of the case. In this view of the matter, I find merits in this petition. It is clearly established on the record of this case that there was no service upon the petitioners in Civil Suit No.263 of 12.10.1995/12.05.1997 before passing the ex parte decree dated 29.09.1998 and they came to know about the aforesaid decree only on receipt of summons in the execution Civil Revision No.6131 of 2009(O & M) 6 proceedings. Resultantly, the ex parte decree dated 29.09.1998 cannot be sustained and is liable to be set aside. Consequently, this revision petition is accepted. Impugned orders dated 18.11.2006 and 11.09.2009 are set aside. The application filed by the petitioners under Order 9 rule 13 is accepted and judgement and decree dated 29.09.1998 passed in Civil Suit No.263 of

12.10.1995/12.05.1997 is set aside. Parties are directed to appear before the trial Court on

19.07.2010. Keeping in view the facts and circumstances of the case, the trial Court is directed to dispose of the suit within 6 months from the date of appearance of the parties before the trial court i.e.19.07.2010. No costs. Allowed.

29.06.2010 (RAKESH KUMAR GARG) JUDGE