C.R No. 29 of 2010 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No. 29 of 2010 (O&M) Date of decision : February 24, 2010 M/S Usha Spinning & Weaving Mills Limited, ...... Petitioner (s) v. M/S Bansi Lal & Company and another, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. V.K.Jain, Sr. Advocate with Mr. Pritam Saini, Advocate for the petitioner. Mr. Jaswant Jain, Advocate for respondent No.1. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This petition has been filed against the orders dated 30.8.2005, passed by the learned Civil Judge (Senior Division), Dhuri, and dated 8.12.2009 passed by the learned Additional District Judge (Adhoc), Fast Track Court, Sangrur, vide which the application under Order 9 Rule 13 of the CPC filed by the petitioner for setting aside the exparte decree has been dismissed. Respondent No.1 had filed a civil suit for recovery on C.R No. 29 of 2010 (O&M) ::2:: 16.7.1986. At that time, the petitioner-company was lying closed and a petition for winding it up was pending before the Delhi High Court. (It is necessary to mention here that within 3.1/2 months of the filing of the suit, the petitioner-company was in fact ordered to be wound up by order dated 6.11.1986). In the civil suit, the petitioner was impleaded in the following terms :- “ 1. Usha Spinning & Weaving Mills Limited, Faridabad ( Haryana). 2. Sh. Jaswant Rai, Managing Director, Usha Spinning & Weaving Mills Ltd., Faridabad, having its Head Office at Jiwan Tara Building, 5, Parliament Street, New Delhi.” The report/s on the registered/dasti notices was to the following effect :- “Report: Lying closed since long. Nobody is residing. Chowkidars have refused to received. 23.7.86” “ Today, on 15.9.2006 after reaching at the spot, inquired. Then a lady clerk who was sitting at the Reception told that they sit in Faridabad. Nothing was written on the summons. Report is submitted. 18.9.86” It was in these circumstances that the petitioner was proceeded against exparte and the suit was decreed on 11.3.1987. As per the averments made in the application filed under Order 9 Rule 13 of the CPC, it was only in the year 1998 that the petitioner came to know about the factum of the decree passed against it and thereafter filed the instant C.R No. 29 of 2010 (O&M) ::3:: application. Both the Courts rejected the application primarily on the ground that when registered notice was sent to the petitioner-company it was served upon the Chowkidar and that this was deemed to be good service. In my opinion, both the Courts below fell into error and dismissed the application taking an unduly harsh and pedantic view of the matter. It would be seen that even in the petitioner it was mentioned that the Mill had been closed since April-May, 1983, and despite knowing the same the impleadment of the petitioner was also done in a manner unknown to law. In fact, a perusal of the description of the plaint in the civil suit would show that the civil suit as such was not maintainable because a juristic person was not impleaded through any functionary. Once it is accepted that the petitioner-company was lying closed for almost 3.1/2 years when the suit was filed, the report on summons could not be taken to be due service. Another stark fact is the conduct of respondent No.1 in filing an execution on the eve of completion of 12 years. In the normal course, a person having a money decree would try and execute it at the earliest and not wait for the period of 12 years to be over. As per counsel for the petitioner, this was done by the respondent only to further displace the case of the petitioner for setting aside the exparte decree so that it could be argued that the application had been filed after 12 years. In my opinion, having said that the Mill was lying closed rather it was incumbent upon respondent No.1 to pray for service of the petitioner- company by way of publication. Even though an exparte decree is as good as a regular decree, yet Courts of law are naturally disinclined to maintain exparte orders where C.R No. 29 of 2010 (O&M) ::4:: there is even an arguable case made out for permitting the defendants to seek setting aside the exparte decree. On a conspectus of all these facts, in my opinion it would be in the interest of justice to set aside the impugned orders. Consequently, this petition is allowed and the impugned orders are set aside. Parties, through their counsel, are directed to appear before the trial Court on 21.4.2010. As the main petition has since been disposed of, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) February 02, 2010. JUDGE `kk'