C.R. No. 5731 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5731 of 2007 Date of Decision: 27.07.2010 Dalbir Singh .... Petitioner Versus Bachan Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present :- Mr. Paramjit Rajpur, Advocate for the petitioners Mr. Arun Abrol, Advocate for the respondents 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. The present petition is filed under Article 227 of the Constitution of India challenging the order dated 1.10.2004 passed by learned Addl. Civil Judge (Sr. Divn.) Gurdaspur as well as order dated 13.8.2007 passed by Addl. District Judge, Fast Track Court Gurdaspur (Annexures P-1 and P-2) whereby the application of the petitioner-defendant No. 2 under Order 9 Rule 13 CPC was dismissed. 2. The brief facts of the present case are that plaintiffs have filed suit for declaration against the defendants inter alia on the ground that land in dispute was earlier owned by C.R. No. 5731 of 2007 2 Nihala Singh son of Giana resident of Village Kot Todar Mal, Tehsil Gurdaspur, who had mortgaged with possession the same with Udham Singh son of Assa Singh vide mortgage deed dated 4.1.1930; After the death of Udham Singh, the mortgagee rights had developed upon Lal Singh and Banta Singh in equal shares and accordingly Mutation No. 1209 was sanctioned in their favour; Banta Singh died issueless without leaving behind any widow and as such his estate had developed upon Lal Singh; Lal Singh became the mortgagee of the entire mortgaged land; the plaintiffs are the heirs of Lal Singh hence now defendants have matured their title over suit; Suit was decreed ex-parte vide judgment dated 27.12.2000. 3. An application under Order 9 Rule 13 was moved by defendants No. 1 and 2 for setting aside the ex-parte judgment and decree dated 22.12.2000. Application moved by defendants No. 1 and 2/petitioner herein was dismissed vide order dated 1.10.2005 and appeal against order dated 1.10.2004 was also dismissed by the appellate Court vide judgment dated 13.8.2007. 4. Order 9 Rule 13 CPC reads as under:- 13. Setting aside decree ex parte against defendant. - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed on for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. C.R. No. 5731 of 2007 3 Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. Provided further 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 defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.” 5. An ex-parte judgment/decree can be set aside under Order 9 Rule 13 when defendant is able to show that the summons was not duly served or that he was prevented by any sufficient cause from appearing when suit was called on for hearing. In the present case defendants are seeking setting aside of the ex-parte judgment decree on the ground that defendants were not duly served. 6. Undisputedly defendants were not personally served. Defendants are said to be served through publication in the newspaper 'Nawan Jamana'. 7. Learned counsel for the petitioner vehemently argued that newspaper 'Nawan Jamana' has no wide circulation in the area and plaintiffs could not prove that paper was having any circulation in the area, hence, substitute service on the defendants/petitioners is doubtful, hence, ex-parte judgment and decree must be set aside so that defendants-petitioner may also place their case before the trial Court. 8. Learned counsel for the plaintiffs/defendants argued that prior to the publication in the Newspaper 'Nawan Jamana' summons C.R. No. 5731 of 2007 4 were sent through registered post which were received back by the Court with the endorsement of refusal, hence defendants were served twice, first time by refusal and second time by publication in the newspaper 'Nawan Jamana'. 9. This is undisputed that defendants were not personally served. They are said to be served through refusal and through publication in the newspaper. I am unable to find out any finding in the judgment of both the Courts below on the point as to whether the alleged newspaper 'Nawan Jamana' was having wide circulation in the area where defendants/petitioner resides. Substituted service through publication can be accepted only when it is proved that newspaper has wide circulation in the area and defendants are in position to read the newspaper. 10. Since there is no proof on the record to prove that newspaper was having sufficient circulation, I am not inclined to accept that substitute service is sufficient, moreover, service by refusal has not been accepted by learned trial Court and after receiving the endorsement of refusal, learned trial Court decided to issue summons through publication, hence no benefit of refusal can also be granted to the plaintiff. 11. In the opinion of this Court, both the parties should be given fair chance to place their cases before the trial Court and none of the party should be given walk over. Case should be decided on merit as far as it is possible. 12. In view of the above, present petition is liable to be allowed. The petition is allowed. Impugned orders are set aside. Ex-parte judgment and decree dated 22.12.2000 is set aside. C.R. No. 5731 of 2007 5 Application under Order 9 Rule 13 stands allowed subject to the payment of cost of Rs. 5000/- to the plaintiff. 13. Parties are directed to appear before the trial Court on 20.8.2010. The defendants shall file their written statement on or before 20.8.2010, thereafter, trial Court shall proceed with the case in accordance with law. (ALOK SINGH) 27.07.2010 JUDGE reena