Lilu Singh & Anr. v. Raj Jain & Ors.

representatives of original defendant No.1-Asa Ram have filed the instant revision petition under Article 227 of the Constitution of India, having failed in both the Courts below in their prayer for setting aside ex parte judgment and decree dated 28.11.1998. Suit was filed by respondent Nos.1 to 16, who include legal representatives of some of the original plaintiffs since deceased, on 31.07.1993 against 8 defendants including Asa Ram defendant No.1 since deceased and now represented by the petitioners, and Ram Pal and Shyam Singh sons of Hari Singh as defendant Nos.7 and 8. Perusal of impugned orders of the Courts below reveals that Asa Ram defendant No.1 and Shyam Singh- defendant No.8 were personally served on 10.11.1993 for

20.12.1993 whereas Ram Pal defendant No.7 was also served on C.R. No.7999 of 2010 (O & M) -2- the same date through his brother Shyam Singh defendant No.8. Pursuant thereto, none appeared for defendant No.1-Asa Ram, who was accordingly proceeded ex parte on 20.12.1993. However, defendant No.8 Shyam Singh appeared in person on 20.12.1993 and the case was adjourned to 09.04.1994 for service of unserved defendants. On 09.04.1994, none appeared for defendant No.8 and he was proceeded ex parte. Munadi was not effected and the case was adjourned to 26.07.1994 on which date, defendant No.7 Ram Pal along with defendant Nos.2, 5 and 6 were proceeded parte. Untlimately, suit was decreed vide ex parte judgment and decree dated 28.11.1998. Petitioners and defendant Nos.7 and 8 jointly moved application dated 21.08.2003 Annexure P-2 for setting aside ex parte judgment and decree dated 28.11.1998 alleging that they were not served in the suit and orders dated 20.12.1993 and 26.07.1994 for proceeding ex parte against them in the suit are illegal and ex parte judgment and decree dated 28.11.1998 are also, therefore, liable to be set aside. It was pleaded that defendant Nos.1, 7 and 8 never refused to accept the summons nor they were served by registered post nor by Munadi. False report of Munadi was procured by the plaintiffs. Various other pleas were also raised. Plaintiffs by filing reply resisted the aforesaid application and it was pleaded that defendant Nos.1, 7 and 8 were duly served, but intentionally did not appear in the trial Court. They were rightly proceeded ex parte. There is no ground for setting aside ex parte judgment and decree in question. The applicants, who filed this application, were aware of the pendency of the suit as well as C.R. No.7999 of 2010 (O & M) -3- passing of the decree. The application is time barred. Some of the plaintiffs have already died and application against dead persons without impleading their legal heirs is not maintainable. Various other pleas were also raised. Learned Additional Civil Judge, (Senior Division), Ambala City vide impugned order dated 07.01.2010 Annexure P-3 dismissed the application for setting aside ex parte judgment and decree. Appeal preferred against the said order by the petitioners herein has been dismissed by learned Additional District Judge, Fast Track Court, Ambala vide impugned judgment dated 11.08.2010 Annexure P-4. By the same judgment, separate appeal preferred by defendant No.7 Ram Pal against order Annexure P-3 of the trial Court has also been dismissed. Feeling aggrieved, petitioners have filed the instant revision petition under Article 227 of the Constitution of India. I have heard learned counsel for the petitioners and perused the case file. As noticed hereinabove, defendant No.1 predecessor-in- interest of the petitioners was duly served with summons in the suit, but he did not appear in spite of service and, therefore, he was rightly proceeded ex parte. There is thus no ground whatsoever for setting aside ex parte judgment and decree. The petitioners alleged in their application Annexure P-2 that they never refused to accept the summons nor Munadi was effected to effect service on them and Munadi report had been procured by the plaintiffs. However, averments to this effect made in the application by the petitioners are completely irrelevant and misconceived. It is not the case of the plaintiffs nor it is born out from the suit file that defendant No.1 C.R. No.7999 of 2010 (O & M) -4- (predecessor of the petitioners) ever refused to accept summons or was served by registered post or by Munadi. On the contrary, defendant No.1 was personally served with summons in the suit, but he did not appear in spite of service and, therefore, he had to be proceeded ex parte. Learned counsel for the petitioners contended that defendant No.1 was aged 90-95 years at that time. However, merely on this ground, ex parte proceedings and consequent ex parte judgment and decree cannot be set aside. Learned counsel for the petitioners also contended that copy of plaint was not served along with summons and, therefore, it was no service of summons in the eye of law. This contention is also untenable. It is mentioned by petitioners in their application Annexure P-2 itself that there was note on the summons that copy was attached with it. It would depict that copy of plaint was attached with the summons and obviously the same was served on defendant No.1 alongwith summons. There is no cogent evidence on record to depict that copy of plaint was not served with summons on defendant No.1. In addition to it, second proviso to Order 9 Rule 13 of the Code of Civil Procedure stipulates in mandatory language that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendants had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. In the instant case, summons on defendant No.1 was served on

10.11.1993 for 20.12.1993. Defendant No.1 thus had sufficient time to appear in the Court and to answer the claim of the plaintiffs. C.R. No.7999 of 2010 (O & M) -5- Defendant No.1 also had notice of the date of hearing, even if it be assumed for the sake of arguments only that copy of plaint was not annexed with the summons. Consequently, in view of aforesaid mandatory proviso, ex parte decree cannot be set aside even if there was alleged irregularity in the service of summons being not accompanied by copy of plaint. In addition to the aforesaid, it has to be noticed that defendant No.1 was proceeded ex parte on 20.12.1993. The suit was decreed vide judgment and decree dated 28.11.1998. However, application Annexure P-2 for setting aside ex parte judgment and decree dated 28.11.1998 was filed on 21.08.2003 i.e almost 5 years after the passing of ex parte judgment and decree. The application Annexure P-2 was thus hopelessly barred by limitation and the petitioners did not even seek condonation of delay in filing the said application. Even otherwise, no ground for condonation of such long delay in filing the said application is made out from the averments in application Annexure P-2. Consequently, the application merited dismissal even on the ground of being barred by limitation. Both the Courts below have arrived at concurrent finding against the petitioners. The said finding is based on proper appreciation of evidence and is supported by cogent reasons. The said finding is fully justified by the evidence on record and is the only reasonable view of the material on record that can be taken by any person of ordinary prudence. The said finding is not unreasonable, unfair or unjustified in any manner. The said finding of the Courts below does not suffer from any illegality or jurisdictional error so as to call for interference in exercise of power of superintendence under C.R. No.7999 of 2010 (O & M) -6- Article 227 of the Constitution of India. The revision petition is completely meritless and is accordingly dismissed in limine.

08.12.2010. A. Kaundal ( L. N. MITTAL ) JUDGE