IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 7284 of 2010 (O&M) Date of decision: February 22, 2011 Narinder Kumar Aggarwal and others .. Petitioners Vs. Smt. Neena and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. V.K. Jindal, Advocate for the petitioners. Mr. Sanjay Tangri, Advocate for the respondent No.1. (Service of respondents No.2 to 8 dispensed with vide order dated 14.2.2011) A.N. Jindal, J This petition assails the order dated 14.9.2010 (Annexure P-14) passed by the Civil Judge (Sr. Division), Yamuna Nagar accepting the application filed by the respondent under Order IX Rule 13 of the CPC and setting aside the ex-parte judgment and decree dated 6.5.2004 passed in case titled Narinder Kumar etc. vs. Lalita Mohan etc. for possession by way of specific performance of the agreement to sell dated 31.5.2002. The factual background of the case is that the applicant- defendants-respondents (herein referred as, 'the respondents') sought setting aside of the ex-parte judgment and decree dated 6.5.2004 by way of an application filed on 1.6.2006 regarding which Padmo defendant had also filed an application claiming the same relief on 24.2.2006. It was submitted that the respondents are the legal heirs of Padmo. Neither they, nor Padmo were in the knowledge of passing any decree and she came to know about the passing of the ex-parte decree only on 20.2.2006 when her son Sham Singh informed her about the forged agreement dated 31.5.2002 in favour of Narinder Singh, Darshan Singh and Nand Lal etc. Sham Singh and Narain Singh were the owners of 30 bigha 13 biswa of land out of which 20 bigha 7 biswa has been sold by Sham Singh and Narain Singh to Puran Singh on 3.1.1972 and they further sold 10 bigha Civil Revision No. 7284 of 2010 -2- *** 10 biswas to Jagdish Lal and others through their attorney and delivered the actual physical possession through different sale deeds. However, Nand Lal who had retired from the revenue department in collusion with the plaintiff forged and fabricated a power of attorney purported to have been executed by the respondents and also the agreement to sell dated 31.5.2002 purported to have been executed by Padmo as well as Virender Kumar son of Darshan Lal Garg and Vishwas son of Virender Kumar. Nand Lal etc. in collusion with the other plaintiffs filed a suit for specific performance and without effecting proper service upon the respondents obtained ex-parte decree on 6.5.2004 on the basis of the forged agreement to sell. The applicant came to know about the ex-parte decree in the month of September, 2005 then they contacted their power of attorney Robin Bhasin to take legal action on their behalf. However, the attorney kept waiting till the respondents were not served in the execution. Thereafter, the respondents came to know that the plaintiff had got a sale deed executed and registered through the Local Commissioner appointed by the court on the basis of the ex-parte decree, therefore, then they had moved an application on 1.6.2006. Padmo had also moved an application for setting aside the ex-parte decree on 24.2.2006 stating that she came to know about the ex-parte decree only on 20.2.2006 when her son Sham Singh informed her about the passing of the ex-parte decree. Notices of the applications were served upon the petitioners who submitted reply denying all the allegations and stating that the agreement was quite genuine and the respondents were duly served and did not intentionally appear in the suit, as such, they were proceeded against ex- parte. They also replied the same way to the application filed by Padmo. Consequently, both the applications were consolidated vide order dated 19.8.2008. From the pleadings of the parties, the following issues were framed :- 1. Whether decree and judgment dated 6.5.2004 is liable to be set aside on the grounds mentioned in the petition?OPP 2. Whether application is not maintainable?OPD Civil Revision No. 7284 of 2010 -3- *** 3. Whether the defendants have no locus standi to file the present application?OPD 4. Whether application is time barred?OPD 5. Whether applicants/defendants have concealed true and material facts from this court?OPD 6. Whether respondents/plaintiffs are entitled to special costs?OPD 7. Relief. Both the parties led evidence. The trial court accepted the applications and set aside the ex-parte decree against which this petition has been filed. Arguments heard. Record perused. The first contention raised by the learned counsel for the petitioner is that the trial court took a wrong view of the matter as the onus to prove issue No.1 was upon the respondents. It was their duty to prove whether the respondents were validly served or not, but they have failed to prove the same. None of the respondents appeared in the witness box in order to discharge the onus. Only Robin Bhasin general power of attorney of the respondent appeared as AW-1 who was not competent to appear and depose as a witness on behalf of the principal in the matter regarding which the respondents had personal knowledge. Thus, they urged that since the factum with regard to service which was in the personal knowledge of the respondents, could not be said to be established for want of proper evidence regarding service. In order to strengthen those arguments, they have placed reliance on the judgment delivered in case Manmohan Singh vs. Smt. Narinder Kaur 2008 (4) R.C.R. (Civil) 81 (P&H). To the contrary, learned counsel for the respondent No.1 while assailing the aforesaid argument has contended that the case is not only of valid service but of obtaining decree by way of fraud. Besides the evidence of invalid service, suffice would be to refer the zimni orders of the case in order to find out whether the petitioners were validly served, it is a case of fraud played upon the respondents by the petitioners and the said zimni orders speak for themselves that the respondents were not duly served. The Civil Revision No. 7284 of 2010 -4- *** petitioners hoodwinked the court and obtained ex-parte decree without serving upon them. The crucial question to be determined in the case is, “whether the petitioners were validly served in this suit?” The respondents are shown as residents of village Jina, P.O. Chambi, Tehsil Chopal, District Shimla (HP). This suit No.156 of 2002 was filed by the petitioners against the respondents on 29.11.2002 and it was decided on 6.5.2004. The zimni orders placed on record and undisputed by the parties read as under :- “Present: Sh. I.L. Gambhir, Adv. for plaintiff. This suit presented today. It be checked and registered. Along with this suit, the plaintiff has moved an application under Order 39 Rule 1 & 2 read with Section 151 CPC. Notice of the suit as well as injunction application be issued to the respondent/defendants for 16.12.2002 on filing of PF/RC and copies of the plaint. 29.11.02 Present: Sh. I.L.Gambhir Adv. for the plaintiff. File taken up today on an application for bringing on record the changed addresses of the defendants No.3 to 7 filed by the plaintiff. Heard. Keeping in view the facts mentioned in the application, the application is allowed. Now the defendants be summoned for 16.12.2002, the date already fixed at their changed address. CJ(SD) 13.12.02 Present: None. File taken up today as I shall be on leave on 16.12.02 to 18.12.2002. Therefore, the case is adjourned to 30.4.03 for the purpose already fixed. All concerned be informed accordingly. AC(SD) 14.12.02 Present: Sh. I.L. Gambhir, Adv. for the plaintiff. File taken up today on the application for early hearing filed by the plaintiff. Keeping in view the facts mentioned in the application, the application is allowed and the case is Civil Revision No. 7284 of 2010 -5- *** preponed and adjourned to 3.2.2003 for service of defendants. CJ(SD)/23.12.2002 Present: Sh. I.L. Gambhir, Adv. for plaintiff. File taken up today as 3rd day of Feb, 2003 was declared holiday. Defendants not served. Now defendant be again summoned for 27.2.2003 on filing of PF/RC and copies etc. 4.2.03 Present: Sh. I.L. Gambhir, Adv. for plaintiffs. Service of defendants not effected. Application u/o 5 rule 20 CPC filed by plaintiffs. Heard. Keeping in view the facts mentioned in the application, the defendants are ordered to be summoned for 28.4.03 through publication in the News Paper 'Hari Bhumi” on depositing of publication charges. 27.2.03 Present: Sh. I.L.Gambhir, counsel for the plaintiff. None for the defendants. All the defendants served through publication in daily 'Hari Bhumi' in 27.3.03 edition for today, but none has appeared to proceed with the case on behalf of the defendants. It is already 3.40 p.m. Hence, the defendants are proceeded against ex-parte. Now for ex-parte evidence case is adjourned to 20.1.2004. CJSD/28.4.03 Present: Shri I.L. Gambhir, counsel for the plaintiff. File taken up today. An application for early hearing has been filed which is allowed in view of the reasons as the circumstances explained therein. Therefore, case is preponed for ex-parte evidence to 15.11.03. CJSD/12.08.03 Present: Sh. I.L. Gambhir, Adv. for the plaintiff. Defendant already ex-parte. Civil Revision No. 7284 of 2010 -6- *** Three PW's are present and recorded. Plaintiff closed his ex-parte evidence. Now case to come up on 20.1.2004 for consideration. 15.11.03 Present: Sh. I.L. Gambhir, Adv. for plaintiff. Defendants already ex-parte. On the request of the counsel for the parties, the case is adjourned to 13.4.2004 for consideration. 20.1.2004 Present: Sh. I.L. Gambhir, Adv. for plaintiff. Defendants already ex-parte. Documents filed and case to come up on 3.5.2004 for consideration. 13.4.04 Present: Sh. I.L. Gambhir, Advocate for the plaintiffs. Defendants already ex-parte. Ex-parte arguments heard. For orders to come up on 6.5.2004. 3.5.04 Present: Sh. I.L Gambhir, Advocate for the plaintiffs. Defendants ex-parte. Vide separate judgment of even date, the suit of the plaintiffs succeeds and is, therefore, decreed ex-parte. Decree sheet be prepared accordingly. File after needful, be consigned to the record room. Announced: 06.05.2004 CJJD” On perusal of the aforesaid zimni orders it transpires that the suit was presented on 29.11.2002 and it was adjourned for the service of the defendants for 16.12.2002. However, on 13.12.2002, on the application filed by the petitioners for changing the address of the defendants and serving them upon the changed addressed, it was taken on 13.12.2002 and Civil Revision No. 7284 of 2010 -7- *** the case was adjourned to 16.12.2002 for service of the defendants on changed address, therefore, it transpires that the respondents could not be served through registered covers within three days only. However, as Presiding Officer was on leave on 16.12.2002, therefore, the file was taken up on 14.12.2002 and on that day the case was adjourned to 30.4.2003 for service of the defendants/ respondents. Again the file was not taken up on 30.4.2003 but was taken up on the application for early hearing on 23.12.2002 and the case was preponed for 3.2.2003 for service upon the respondents. Again the file was not taken up on 3.2.2003 but it was taken up on 4.2.2003 on account of declaring 3.2.2003 as holiday and the case was adjourned for service upon the defendants for 27.2.2003. On 27.2.2003, the trial court without recording its satisfaction if the defendants had refused to accept service; or they were evading service or they could not be served by way of ordinary process, the court, on the application filed by the plaintiffs under order V Rule 20 CPC, ordered to serve the defendants for 28.4.2003 through publication in the news paper 'Hari Bhumi' on depositing of publication charges. On 28.4.2003, the petitioners were proceeded against ex-parte. The other glaring fact which goes to establish that the respondents were not duly served and it was a procured order that summons for the service of Neena through registered cover sent on her new address supplied by the respondents returned undelivered with the report that none had met at the given address. But, despite the fact, the court without resorting to the ordinary process ordered service upon the respondents by way of publication. The court did not record its satisfaction as required under the law that the respondents could not be served except by way of substituted service. Again the respondents are stated to have been served through newspaper 'Hari Bhumi' which had no circulation at all in the State of Himachal Pradesh as is evident from the notification dated 3.8.2002 vide which a list of newspapers for publication of the notice of civil court in the State of Haryana, U.T. and Chandigarh. This notification remained in force for three years from the date of its publication which indicates that the newspaper 'Hari Bhumi' is published in Rohtak and is restricted to Haryana only. As such, the newspaper “Hari Bhumi” had no circulation in Himachal Civil Revision No. 7284 of 2010 -8- *** Pradesh. The respondents also placed the latest notification dated 3.12.2008 vide which the circulation of 'Hari Bhumi' was restricted to the State of Haryana only. Thus, the inference would be drawn that the respondents were neither served validly through ordinary process nor by way of publication. The trial court has rightly relied upon the judgment delivered in case Jaswant Singh vs. Sukhjit Kaur 2010 (3) Civil Court Cases 472 (P&H) wherein service of summons were sent only once for the service of the defendant which was received back undelivered with the report that the address was incomplete, thereafter no effort was made to furnish the correct address. Instead of filing correct address, an application under Order 5 Rule 20 CPC for substituted service was filed. Notice published in newspaper which was not proved to be in circulation in the area where defendant resided. It was held that defendant not proved to have knowledge of the pendency of the suit and, therefore, ex-parte decree has been set aside, thus, the ratio of this ruling is fully applicable upon the facts of the present case. Similarly, in case Gurprit Singh vs. Ranjit Kaur 1997 (2) Civil Court Cases 424 (P&H) it has been held that without compliance of provisions of Order 5 Rule 20 CPC, the applicant cannot be deemed to have been served and as such could not have been proceeded against ex-parte. Since, in this case respondents had never been served by way of ordinary process or through registered covers, therefore, there was no occasion for the petitioners to seek service upon defendants/applicant through publication. It has also been observed by this Court in case Rajinder Garg and another vs. M/s New Life Finance and Investment Co. Pvt. Ltd. and another, Civil Revision No.2717 of 2005, decided on 12.8.2010 as under :- “From the perusal of Order 5 Rule 20 CPC, this Court is of the opinion that there should be an order by the Court authorizing the serving officer to cause service by affixation. As per Order 5 Rule 17 and 18 CPC, serving officer has to make endorsement that he has affixed a copy of summon and the name and address of the person by whom the house/shop was identified and in whose presence the copy was affixed. Serving Civil Revision No. 7284 of 2010 -9- *** officer has also to make endorsement stating the time and manner in which the summon was served and name of the person has to be endorsed thereon, who has witnessed the service.” This is neither a case of proper service nor it indicates the bonafides of the petitioners to effect service upon the respondents. A mala- fide on their part is writ large. They continued getting the case preponed so that the respondents may not come to know about the proceedings and attend the case. Even on the date fixed they were not properly served. As regards the question of limitation, it could well be said that where the proper service is not proved, then the limitation to set aside the ex-parte decree was to start from the date of knowledge of the ex-parte decree. Unaware of passing of the decree against them, the petitioners could not take any proceedings in the form of an appeal. The respondents directed their attorney but he did not proceed to file the appropriate application for setting aside the ex-parte decree about which they had come to know only when the petitioners got executed the sale deed through the Local Commissioner. The respondents could apply for setting aside the decree if they satisfy the court that they were prevented by sufficient cause from appearing when the suit was called for hearing, the court on satisfaction shall make an order setting aside the decree as against them upon such terms as to costs payment into the court or otherwise as it think fit. Normally the application for setting aside ex-parte decree could be filed within 30 days of the passing of the decree or from the date of knowledge of the decree as the case may be, under Article 123 of the limitation Act. In case of delay, the benefit of Section 5 of the Act could be extended if the defendant is able to satisfy the court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the statute. The Madras High Court in case Krishna v. Chathappan, ILR 3 Mad 269 observed as under :- “Section 5 gives the court a discretion which in respect of Civil Revision No. 7284 of 2010 -10- *** jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.” The Apex Court in case The State of West Bengal v. The Administrator, Howrah Municipality & Ors. 1972 (1) SCC 366 and G. Ramegowda, Major & Ors. v. Special Land Acquisition Officer, Banglore, 1988 (1) RRR 555 (SC) : 1988 (2) SCC 142, observed that the expression “sufficient cause” in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been acted to serve the interests of justice and not to defeat it. Again, the Apex Court in case N. Balakrishnan v. M. Krishnamurthy, 1999 (2) RCR (Civil) 578 (SC) : 1998 (7) SCC 123 held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the Apex Court observed as under :- “It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Some times delay of the shortest range may be uncondable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation Civil Revision No. 7284 of 2010 -11- *** as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.” The Apex Court in case M.K. Prasad vs. P. Arumugam 2001 (4) R.C.R. (Civil) 87 observed as under :- “8. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interest of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex-parte decree. To avoid further delay, we have Civil Revision No. 7284 of 2010 -12- *** examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex- parte decree as well.” The meritorious rights of the respondents were at stake. The decree for specific performance of 2/3rd share of the land measuring 13 bigha 10- 2/3 biswas was obtained, therefore, the respondents were not to be benefitted by showing their absence, as such, no mala fide on their part could be inferred for absenting themselves from the court. On the other hand, the conduct of the petitioners indicated that they wanted to obtain the decree by keeping the respondents away from the court proceedings and by keeping it guarded secret. In such a situation, there could be said to be sufficient grounds for condoning the delay. In cases involving high stakes, the Apex Court was always to extend discretion for condoning the delay in favour of the un-served defendants. It was also observed by the Apex Court in case Improvement Trust, Ludhiana vs. Ujagar Singh and others 2010 (3) Civil Court Cases 374 as under :- “.......... While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr. Vijay Hansaria appearing for the respondent No.5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds are made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No.5 and cannot subscribe to the same. After all, justice can be done only when the matter is Civil Revision No. 7284 of 2010 -13- *** fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter