IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 27 of 2008 Date of decision: 24.6.2008 Roshan Lal Petitioner. Versus Kashmiri Lal and others. Respondents Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No . For the petitioner: Mr. Naresh K. Thakur, Advocate. For respondent No.1. Mr. Suneet Goel, Advocate. Deepak Gupta, J. (oral) This petition under Article 227 of the Constitution of India is directed against the order dated 24.12.2007 passed by the learned Additional District Judge, Una, condoning delay of eight years in filing the appeal. All the parties to the litigation are real brothers. They are the sons of Gian Chand. Roshan Lal (petitioner here-in) filed a suit against his brothers praying that defendants be restrained from interfering over the suit land and also be restrained from raising any construction over the suit land. One of the brothers, Pritam Singh was served. Others were not served personally. On the summons issued to Kashmiri Lal the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. Process Server reported that he carries on his business at Amritsar. Despite such note the learned trial Court ordered that summons be served by way of affixation at his last known address. Thereafter the defendants were proceeded against ex-parte and ex-parte decree was passed against them. According to Kashmiri Lal, respondent No.1 herein, he came to know about the ex-parte decree only on 25.11.2004 when publication in respect of the execution petition filed by the plaintiff was made. He thereafter immediately filed the appeal. Alongwith the appeal, an application for condonation of delay was filed. Issues were framed in this application. Kashmiri Lal appeared in the witness box and stated that he is illiterate and is residing in Amritsar for more than 20 years. Shri Davinder Kumar, Secretary of Gram Panchayat Ghanari was also examined who produced the family register and copy of the relevant extract is Ext.PW-1/A. According to this witness, the name of Kashmir Singh S/o Gian Chand has been deleted from the family register from 1988, since when he was not residing in the village. The present petitioner, despite having been given opportunity to lead evidence did not care to step into the witness box nor led any evidence. The learned appellate Court on the basis of the evidence led before it condoned the delay. The Court below has exercised discretion in accordance with law. There is nothing on record to show that this order is illegal or that the Court has exercised discretion not vested in it by law or that the Court has passed a perverse order. The Court has passed an order on appreciation of evidence led before it. In the present case, as pointed out above, all the parties are real brothers. The plaintiff must have known where his brother resides in Amritsar. Even if, he was not aware of his where-abouts, he could have ascertained the same without much difficulty. He did not care to do so but got his brother served by way of affixation and ex-parte decree was obtained. In the proceedings before the lower Court the petitioner did not place on record any document to show that the decree was ever served upon Kashmiri Lal. Keeping in view the fact that all the parties are real brothers, I am convinced that the plaintiff knew where his brothers reside but got him served at his ancestral village. This service was no service in the eyes of law. Therefore, the learned lower appellate Court was justified in condoning the delay. The order calls for no interference and accordingly the petition is rejected. 24th June, 2008 (Deepak Gupta), J. ™