Civil Revision No.750 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.750 of 2008 Date of decision: September 09, 2008 Bimal Kumar and Others …..PETITIONERS Versus Kaura Singh and another …..RESPONDENTS CORAM: HON’BLE MR JUSTICE T.P.S.MANN PRESENT: Mr Vikas Bahl, Advocate for the petitioners. Mr Jai Bhagwan, Advocate for respondent No.1. T.P.S.MANN, J. Suit for declaration and possession filed by the petitioners was dismissed in default under Order IX Rule 8 CPC by learned trial Court on 17.4.2004, on account of their non-appearance. The petitioners filed an application under Order IX Rule 9 read with Section 151 CPC for restoration of their suit to its original place by recalling the order dated 17.4.2004, but their application was dismissed by the learned trial Court on 26.4.2005. The petitioners challenged the said order by filing an appeal, which was dismissed by learned District Judge, Sangrur on 15.1.2008. The aforementioned orders have been challenged by the petitioners by filing the present revision under Article 227 of the Constitution of India. Suit was initially filed on 1.10.1991. When it was taken up for further proceedings on 8.3.2004, learned counsel representing the petitioners suffered a statement that he had no instructions from his clients. The Court issued notice to the petitioners for 31.3.2004 by Civil Revision No.750 of 2008 -2- summoning them through notice/Munadi. However, no Munadi was effected and on 31.3.2004, the suit was fixed for 17.4.2004 for summoning the petitioners once again through Munadi. Noticing that the petitioners had been served through Munadi, but they had not put in appearance and also that no evidence had been led by them, learned trial Court felt satisfied that the petitioners were not interested in pursuing the suit and, accordingly, dismissed the same in default. Learned counsel for the petitioners has submitted that the application under Order XXXIX Rules 1 and 2 CPC filed on behalf of the petitioners for the grant of temporary injunction was dismissed by the learned trial Court on 14.6.2003 and suit adjourned to 12.11.2003 for their evidence. The petitioners challenged the order declining their application for temporary injunction by filing an appeal, in which the Court restrained the respondents from alienating the suit property. In the meanwhile, the petitioners also filed an application dated 27.1.2004 before learned trial Court for summoning their witnesses and depositing process fee/diet money. It is submitted that House Tax Clerk of Municipal Committee, Malerkotla and one Jagdish Chand were sought to be summoned. As the diet money/process fee stood deposited, it was for the Court to secure their presence, more-so when they were official witnesses. On 3.2.2004, as no PW was present, it was prayed on behalf of the petitioners that one last opportunity be granted to them to conclude their evidence, failing which their evidence may be deemed to have been closed. Service of House Tax Clerk was duly effected for 8.3.2004 as is apparent from the report of Process Server Annexure P-4. However, Jagdish Chand could not be served. As his address was incomplete, he Civil Revision No.750 of 2008 -3- could not be traced out. One of the witnesses stood served and as he had not come present, learned trial Court ought to have secured the presence of the said witness by issuing bailable/non bailable warrants. In any case, learned counsel representing the petitioners could have sought an adjournment on that ground, but instead, he pleaded no instructions. Instead of requiring personal service of the petitioners, learned trial Court opted for serving them by way of Munadi. On 31.3.2004, learned trial Court observed in the zimni order that notice through Munadi or ordinary process could not be issued to the plaintiffs as process fee had been filed late. Notice through Munadi was again issued for 17.4.2004. The petitioners were never served personally. Their service as shown to have been effected by way of Munadi on 10.4.2004, could not be considered under the law to be their proper service. In fact, no such Munadi was carried out in the locality of the petitioners. Therefore, it has been prayed that the impugned order rejecting the application of the petitioners under Order IX Rule 9 CPC be set aside, order dated 17.4.2004 dismissing their suit under Order IX Rule 8 CPC be recalled and the suit restored to its original number. Learned counsel for the respondents has opposed the revision by submitting that the petitioners were prosecuting their suit with due diligence. Neither they produced their witnesses nor they themselves appeared before learned trial Court on 17.4.2004, for which date they stood served through Munadi. Moreover, on one of the previous dates, the counsel representing them pleaded no instructions. Under these circumstances, learned trial Court was justified in dismissing the suit under Order IX Rule 8 CPC and the application filed by the Civil Revision No.750 of 2008 -4- petitioners under Order IX Rule 9 CPC rightly dismissed by learned trial Court and so also their appeal. It is apparent from the impugned orders that on account of their not appearing before the trial Court, the petitioners were sought to be served Munadi. No steps were taken by the trial Court to serve the petitioners in person. In the first instance, the trial Court ought to have issued notices to the petitioners and in the event of their being not served in the said manner, the Court could have then proceeded to adopt the process of substituted service i.e. by way of Munadi/proclamation. In Harbans Singh vs. Amrik Singh and anr. 1997 (2) CCC 309, it was held that the order of substituted service should only be as a last resort when there is no possibility of effecting service upon a person in any other manner. In Joginder Singh vs. Tarsem Lal, 1995 HRR 103, it was held that service by Munadi was a weak type of evidence though it is permitted by law. Out of the two witnesses, who were to be examined on behalf of the petitioners, House Tax Clerk of Municipal Committee, Malerkotla already stood served. In case, he had not come present, the trial Court could have resorted to coercive measures for securing his presence by issuing bailable/non-bailable warrants. The petitioners could be least interested to delay the presence of an official witness, more-so when the witness in question stood served. The other witness, who was to be examined on behalf of the petitioners was Jagdish Chand. The petitioners had already deposited diet money/process fee. Inspite of the same, his service could not be effected. The petitioners were not in possession of his complete address and therefore, failed to trace him out. Civil Revision No.750 of 2008 -5- However, the fact remained that one of their witnesses to be examined by them stood served, but instead of issuing bailable/non-bailable warrants so as to secure his presence, learned trial Court dismissed the suit in default for the reason that the petitioners were not present. Once the order was passed by the trial Court on 17.4.2004 in dismissing the suit in default, the petitioners filed an application on 11.5.2004 under Order IX Rule 9 read with Section 151 CPC with a prayer for restoration of their suit. It cannot be said that the petitioners moved the Court for restoration of their suit long after passing of the order of dismissal of their suit in default. Moreover, ends of justice require that the petitioners should not go un-heard in their suit. Every case ought to be decided on merits. It may also be mentioned here that the petitioners in their suit had prayed for a decree of possession of the land mentioned therein. By delaying the decision of their suit, they were not to gain anything. Moreover, Abhishek Kumar Jain, one of the petitioners, is a minor and represented in his suit as well as in the present revision through his mother-Smt Shashi Bala. In such a situation, the suit qua Abhishek Kumar Jain could not have been dismissed in default without appointment of a Court guardian. In view of the above, the orders passed by the Courts below in not accepting the plea of the petitioners for restoration of their suit and declining to recall the order dated 17.4.2004 cannot be sustained. Resultantly, the revision is accepted. The impugned orders are set aside and while accepting the application of the petitioners under Order IX Rule 9 read with Section 151 CPC, the order dated 17.4.2004 passed by learned Trial Court stands recalled and the suit restored to its Civil Revision No.750 of 2008 -6- original number. The trial Court shall proceed with the suit from the same very stage when it was dismissed in default. Parties alongwith their counsel to appear before the trial Court on October 22, 2008. September 09, 2008 (T.P.S.MANN) Pds. JUDGE