IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5448 of 2009 (O&M) Date of decision: February 23, 2011 Ranjit Singh .. Petitioner Vs. Balwant Singh and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Vijay Lath, Advocate with Mr. Kashmir Singh, Attorney of the petitioner. A.N. Jindal, J This petition assails the order dated 21.3.2009 passed by the Civil Judge (Sr. Division), Nawanshahar allowing the application under Order 9 Rule 13 CPC for setting aside the decree dated 21.5.1986 passed by the Additional Civil Judge (Sr. Division), Nawanshahar in Civil Suit No.110 of 1985 titled as Shingara Singh vs. Balwant Singh. Shingara Singh and others had filed a civil suit No.110 of 1985 against Balwant Singh for recovery of `5240/- (`4000/- + `1240/- as interest) which was decreed along with costs on 21.5.1986. Balwant Singh who was residing in England since 25.7.1984 having come to know about the ex-parte judgment and decree moved an application for setting aside the same on 22.3.2000 alleging that he has been residing in England since 25.7.1984 about which Shingara Singh knew. However, he intentionally concealed this fact and gave the address of his village Bharoli for his service in the suit and obtained ex-parte decree. Even when he disclosed to the court that Balwant Singh was residing in England, he did not give his complete address of England, therefore, he could not be duly served in the case. Even substituted service was not properly effected. The publication was made in the newspaper which was not of circulation in England. As such, ex-parte decree passed against him deserves to be set aside. Reply to the application was filed by the petitioner being legal representatives of Shingara Singh (since deceased) wherein it was stated that the respondent knew about the pendency of the suit and he intentionally Civil Revision No. 5448 of 2009 -2- *** did not appear, therefore, the petition was liable to be dismissed. On the pleadings of the parties, the following issues were framed by the trial court :- 1. Whether the ex-parte order dated 21.5.1986 is liable to be set aside?OPA 2. Relief. Both the parties led evidence and ultimately the application was accepted. Today neither of the parties have appeared in person in the court. Both the parties are stated to be residing abroad. Any way, this court is concerned with determination of the fact, “whether the respondent was duly served in the case?” On perusal of the impugned judgment, it transpires that the suit was instituted on 2.5.1985 and Shingara Singh did not disclose the correct address of the respondent No.1 of England but he was addressed as resident of village Bharoli. No particulars of the place where he was residing in village Bharoli were also mentioned. The summons received back in the court with the report that the respondent was residing in some foreign country. The court instead of asking for the correct address of the respondent of England where he was residing, ordered to serve him by way of publication in the newspaper “The Tribune”. Even the place of publication and the relevant edition of the said newspaper was not mentioned. Notice Ex.R-2 also does not contain the address of Balwant Singh in England. A set procedure has been laid down in the Code for service upon the parties and the rules further reveal that before issuing the substituted service, the court has to be satisfied from the process issued by it in the ordinary manner that the respondent could not be served by ordinary process, but the record do not indicate if the court recorded such observations with regard to its satisfaction for service upon the respondent by way of substituted service. Thus, in the absence of any process to be followed for service upon the defendant- respondent and also in the absence of any proper Civil Revision No. 5448 of 2009 -3- *** publication in the newspaper of the circulation where the respondent was ordinarily residing, he cannot be said to be duly served in the case. The trial court has rightly recorded the findings with regard to the fact that the respondent was not duly served. As such, the trial court was right in allowing the application for setting aside the ex-parte decree. No merit. Dismissed. February 23, 2011 (A.N. Jindal) deepak Judge