Civil Revision No. 3046 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3046 of 2010 (O&M) Date of decision: 10.05.2010 Ajaib Singh ....Petitioner Versus Hari Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sonia G. Singh, Advocate, for the petitioner. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 8.2.2010, passed by the learned Civil Judge (Junior Division), Barnala, allowing an application moved under Order 9 Rule 13 of the Code of Civil Procedure. Respondent/defendant, filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside ex parte judgment and decree dated 18.10.2004, by pleading therein, that ex parte judgment was passed without notice to the defendant/respondent. It was also pleaded that it was only on 2.2.2005, that the defendant/respondent came to know about the passing of the decree, when notice for passing of final decree was received by him. The application was contested. The learned trial Court dismissed the application. In appeal, the case was remanded back, with a direction to frame the issues, and thereafter decide the application. Civil Revision No. 3046 of 2010 (O&M) -2- After remand, the learned trial Court framed the following issues: - “1. Whether application is liable to be allowed? OPA 2. Whether application is time barred? OPR 3. Relief.” The parties were allowed to lead evidence. The learned trial Court, on appreciation of evidence, recorded a finding that defendant/respondent was not served, as the chowkidar, who was said to be witness to the service, had not supported the case, set up by the plaintiff/petitioner. The defence of the defendant/respondent is such, which prima facie proves, that there was no reason for the defendant/respondent not to appear in Court, in case, he had known about the pendency of the suit. It is well settled law that the civil Court has to decide the cases on probabilities. In view of the peculiar facts and circumstances of the case, it cannot be said, that the learned trial Court committed, any error in exercising the discretion to set aside the ex parte proceedings. The Court should have compensated the plaintiff/petitioner with costs. While dismissing the revision petition, it is ordered that setting aside of ex parte order, will be subject to Rs.3,000/- (Rupees three thousand only) as costs. (Vinod K. Sharma) Judge May 10, 2010 R.S.