Gurbakhash Singh v. Sant Singh & Ors.

CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr.F.S.Virk, Advocate, for the petitioner. Mr.Vivek Suri, Advocate, for the respondents. HEMANT GUPTA, J. (Oral) Defendant No.1 is in revision aggrieved against an order passed by the learned trial Court on 07.09.2001, whereby an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside ex parte judgment and decree dated 24.12.1994 was dismissed. The order in appeal dated 23.04.2002 affirming the said order is also subject matter of challenge in the present petition. Sant Singh-respondent No.1 filed a suit for declaration that the suit property was previously owned by Bishan Singh @ Bishna. After the death of Bishan Singh, the property was inherited by plaintiff, defendant No.1 (the present petitioner) and defendant No.6 daughter and one Gurcharan Singh in equal shares. In the said suit, the petitioner was proceeded ex parte on 14.06.1994 and after recording the ex parte evidence, the decree was granted on 24.12.1994. An application for setting aside the ex parte judgment and decree was filed on 13.09.1995 in which the petitioner appeared as AW-1, as his own witness and examined one Avtar Singh as AW-2, the person who is attesting witness of the report of refusal. On the other hand, the plaintiff- C.R.No.4927 of 2002 2 respondents examined Gurmail Singh as RW-1, an official from Sub Post Office Nabha; Rafik Ahmed as RW-2, Process Server; and Sant Singh, plaintiff as RW-3. After considering the evidence on record, the learned trial Court found that the petitioner refused to accept the process served through RW-2 Rafik Ahmed on 28.05.1994 and that the application for setting aside the ex parte judgment and decree is beyond the period of limitation. Consequently, the application was dismissed. Having heard learned counsel for the parties and after examining the record, I find that the orders passed by the Courts below suffer from patent illegality or irregularity. It is the case of the petitioner that the plaintiff was adopted by one Jeon Singh. Thus, on account of his adoption by Jeon Singh, he will not have any right and interest in the property of Bishan Singh. It is the case of the petitioner that he was not served with the process of the Court and the report of the refusal is procured one. The report of refusal is attested by one Avtar Singh and Darbara Singh. The attesting witness Avtar Singh appeared as AW-1 and has deposed that he knew Gurbax Singh and he does not know that any litigation between Sant Singh and Gurbax Singh was pending. He did not know Mohd. Rafik Khan, Process Server and that the said Process Server served any summons of any case upon Gurbax Singh. The other attesting witness namely Darbara Singh has not been examined. Rafik Ahmed (RW-1) has deposed that he knows Gurbax Singh personally and on 28.05.1994 Gurbax Singh met him in Court compound at Nabha and refused to accept the service, then Avtar Singh and Darbara Singh thumb marked as a witness. In his cross-examination, Rafik Ahmed (RW-1), Process Server could not tell the exact date and month of the period assigned to him for service of the summons of Village Mehas. He could not C.R.No.4927 of 2002 3 tell the time of his visit to Village Rohti Khas. He deposed that he visited twice in a single day, but he could not disclose that how many persons were present at the house of the present petitioner. He has deposed that he did not know Avtar Singh and Darbara Singh personally nor he called Sant Singh at the time of his visit. Sant Singh, plaintiff-respondent appeared as RW-3 and in his cross-examination he has deposed that the litigation is going on between the parties for the last 2-3 years and that he never accompanied the Process Server for serving notice/summons upon the present petitioner. He admits that Jeon Singh was related to him from his brotherhood as ‘Taya’ and denied the suggestion that he succeeded the estate of Jeon Singh being his adopted son. He also denied the suggestion that he got this suit decree ex parte because he could not get share in the property by natural succession. The petitioner as AW-1, in his cross-examination. has deposed that he know Rafiq Ahmed, Process Server. It is the said statement, which has weighed with the Courts below in declining the application for setting aside ex parte judgment and decree. It was on 02.05.1994, the process was ordered to be served upon the defendant (the present petitioner) for 14.06.1994. From the testimony of Rafiq Ahmed, Process Server, it is apparent that he has gone to the Village twice on a single day. He did not know the attesting witnesses namely Avtar Singh and Darbara Singh, but he got the attestation from the said attesting witnesses on the report of refusal in the Court compound. In the Court compound, the Process Server could have obtained attestation from other respectables rather than two unknown persons. It leads to inference that the report of refusal was maneuvered by the plaintiff. C.R.No.4927 of 2002 4 The plaintiff has sought a decree for declaration in respect of his share in the property. As per the plaintiff, the parties were litigating for the last 2-3 years. Record of the suit shows that a suit for permanent injunction was filed by the plaintiff in the year 1996 i.e. after the decree was granted in the present case. May be, the reference of the petitioner that he know Rafiq Ahmed, Process Server was in respect of subsequent proceedings. It was not suggested to the petitioner that he know Rafiq Ahmed at the time when the process was purportedly served. In view of the said fact, it is difficult to accept that the findings recorded by the Courts below that the petitioner refused the process at the instance of Rafiq Ahmed, Process Server. The testimony of Rafiq Ahmed is not that of a reliable witness. The ex parte proceedings initiated against the petitioner on

14.06.1994 were not for sufficient reasons. Consequently, even the ex parte decree granted on 24.12.1994 cannot be said to be justified. The plea of limitation will not arise as the execution to file application would arise on the date of knowledge. The knowledge of the proceedings cannot be attributed to the petitioner on 28.05.1994. The stand of the petitioner that he came to know on 04.09.1995 about the ex parte proceedings cannot be said to be unjustified. Consequently, the orders dated 07.09.2001 and 23.04.2002 passed by the Courts below, are set aside. The matter is remitted back to the learned trial Court for deciding the suit on merits in accordance with law. Parties through their counsel are directed to appear before the learned trial Court on 10.01.2011.

06.12.2010 Vimal (HEMANT GUPTA) JUDGE