Civil Revision No.799 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.799 of 2010 (O&M) Date of decision: 01.12.2010 Satnarain and another ....Petitioners Versus Mahender Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Jai Vir Yadav, Advocate, for the petitioners. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Petitioner has invoked the supervisory jurisdiction of this Court assailing the order dated 12.6.2007 passed by Additional Civil Judge (Senior Division), Rewari, as well as judgment dated 9.12.2009 passed by Additional District Judge, Rewari, thereby rejecting the application, for setting aside the ex parte judgment and decree dated 29.9.200,1 under Order 9 Rule 13 CPC. Suit for specific performance of contract was decreed ex parte on 29.9.2001. Sube Singh defendant No.2 is alleged to have received summons on his behalf as well as on behalf of his brother Ramotar. It is alleged that Ramotar was not having cordial relations with his brother Sube Singh, hence receiving of summons by Sube Singh on behalf of Ramotar should not be treated valid service on Ramotar. It is further Civil Revision No.799 of 2010 (O&M) -2- alleged that defendant No.1 Ramotar could not know about the pendency of the suit and could acquire knowledge about the ex parte judgment and decree dated 29.9.2001 on 20.11.2004 when execution was listed. Learned Additional Civil Judge (Senior Division), Rewari, vide order dated 12.6.2007 dismissed the application having found valid service on Ramotar and having observed that despite of due service Ramotar failed to appear before the trial Court and could not furnish sufficient reason or explanation for remaining absent during the pendency of the suit. Order of the learned trial Court dated 12.6.2007 rejecting the application under Order 9 Rule 13 CPC was challenged in an appeal on 21.1.2008 with delay of 217 days. Learned appellate Court has observed that service on Ramotar and his brother Sube Singh was perfect and no explanation has been preferred to remain absent during the suit. Appellate Court has also observed that no explanation has been furnished to condone 217 days' delay in filing the appeal. Learned counsel for the petitioner argues that service on Ramotar was not valid, hence Ramotar could not be said having been served, hence ex parte decree should be set aside. Order 5 Rule 15 CPC reads as under: - “15. Where service may be on an adult member of defendant's family. - Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.” Civil Revision No.799 of 2010 (O&M) -3- In the opinion of this Court, when defendant is not present in his residence at the time of effecting the service, adult member of the family of the defendant is entitled to receive summons. Since, admittedly Sube Singh has received summons on behalf of himself and his real brother Ramotar, hence service on Ramotar seems to be valid and correct. Moreover, Sube Singh defendant No.2 and Ramotar defendant No.1 were having no adverse interest against each other. Suit for specific performance was filed against both the brothers. Both brothers/defendants have suffered decree for specific performance. Ramotar or his LRs/petitioners are not claiming that Sube Singh was in collusion with the plaintiff. No enmity between two brothers is pleaded. In the opinion of this Court even otherwise if service on Ramotar is said to be irregular, this is not a ground to set aside the ex parte judgment and decree in view of proviso to order 9 Rule 13 CPC. Moreover, delay of 217 days in filing the appeal has also not been properly explained. In view of this, no interference is called for. Dismissed. (Alok Singh) Judge December 01, 2010 R.S.