CR No.4447 of 2006 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4447 of 2006 (O&M) Date of Decision: 09.08.2010 Makhan Singh & Ors. ..Petitioners Vs. Makhan Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Gagandeep Singh, Advocate, for the petitioners. Mr.Alok Jain, Advocate, for respondent Nos.1 & 2. Ms.Gursharan Kaur, Advocate, for Ms.G.K.Mann, Advocate, for respondent No.4. --- Vinod K.Sharma,J. (Oral) This revision is directed against the order dated 18.05.2006 passed by the learned Additional District Judge, Gurdaspur allowing an application filed by the respondents under Order 9 Rule 13 of the Code of Civil Procedure (for short the Code). The petitioners/plaintiffs filed a suit for declaration to the effect, that they have become owners of the suit land measuring 14 kanals 18 marlas by efflux of time, as the right of redemption regarding the suit CR No.4447 of 2006 2 land had lapsed resulting in ownership of the plaintiff/petitioner. The defendants/respondents were proceeded against ex parte in the suit. On the basis of ex parte evidence led by the plaintiffs the suit was decreed vide judgment and decree dated 4.12.1993. Makhan Singh and Lakhwinder Singh filed application under Order 9 Rule 13, read with section 151 of the Code on 14.1.1994 for setting aside ex parte decree, on the ground that they were not served in the suit and that they came to know about ex parte decree only a day before the filing of application, when it was declared by the plaintiffs that they have become owners of the suit land, under the decree of the civil court. It was the case of the defendants/respondents, that they were owners in joint possession of the suit land and the plaintiffs/petitioners had got no right, title or interest in the suit land. The application was contested by the petitioners/plaintiffs. The case of the plaintiffs/petitioners was, that the application was false, baseless, and without any force. The application was filed only to harass the plaintiffs/petitioners. It was denied that the respondents/ were not served in the suit or that the report of service was bogus. They also denied that the defendants/respondents came to know about the decree only a day before the filing of the application. The case of the plaintiffs/petitioners was, that the defendants/respondents had full knowledge about the pendency of the proceedings, till passing of the decree. It was also pleaded case, that actually the defendants/respondents filed an application for setting aside ex CR No.4447 of 2006 3 parte proceedings in the court of Shri J.S.Chawla, the then learned Additional Civil Judge (Senior Division), Batala on 21.12.1992 in which summons were issued to the counsel for the plaintiffs, but the application was dismissed. Therefore, it was asserted that the defendants/respondents were estopped from filing the present application. The application was said to be time barred. It was asserted that the right of the defendants stood extinguished by efflux of time after lapse of statutory period of redemption of mortgaged land. That the absence of the defendants in the suit was willful and intentional. This plea was prima facie not available as the plaintiffs could not claim to have become owners by efflux of time. On the pleadings of the parties following issues were framed by the learned trial court:- 1. Whether there are sufficient grounds for setting aside the judgment and decree dated 4.12.1993?OPA 2. Relief. The learned trial court, after the parties were allowed to lead evidence, came to the conclusion that Lakhwinder Singh one of the defendants had appeared in the court and deposed that ex parte decree dated 4.12.1993, be set aside, but he did not examine any other person from the village to prove his case. The learned trial court thereafter concluded that the summons placed in the original file revealed that the defendants were residing in the village and there was report of munadi. CR No.4447 of 2006 4 The learned trial court held, that the summons dated 26.5.1992 were directed to be served through munadi for appearance in the court on 28.5.1992 and that the munadi was effected on 20.5.1992. Lakhwinder Singh, defendant/applicant in the deposition had given his address, as resident of Malliwanwala and further admitted in his cross-examination that there was no other person by this name. The learned trial court from the evidence, concluded that Lakhwinder Singh was resident of village Malliwanwala, where he was ordered to be summoned, and later on summoned through munadi. Learned trial court accordingly held, that the defendants were duly served and they failed to appear. The learned court also held that in case service was not effected, the defendants could have examined Chowkidar in support of their case. The learned trial court also took note of a copy of application, which was neither signed by the counsel or by the parties, nor there were any signed summons, to attribute knowledge to the defendants/respondents of ex parte decree, still by relying on this application attributed knowledge to the respondents and dismissed the application. The defendants/respondents, preferred appeal against the order. Learned lower appellate court reversed the findings of the learned trial court, in view of the settled law that though initial onus was on the respondents who had sought setting aside of ex parte decree to prove, that no service was effected on him but that onus stood discharged, when statement is made in court, that he was not served in the suit. Thereafter it is for the plaintiff to prove that the applicant is duly served. Leaned lower CR No.4447 of 2006 5 appellate court, concluded that the evidence showed that plaintiffs/ petitioners had failed to discharge this onus. Reason for coming to this conclusion was, that though the one of the plaintiffs stepped into witness box, to depose that the defendants/respondents were duly served, but he did not examine the process server or chowkidar to prove due service. Learned lower appellate court relied upon the judgment of this court in the case of Gian Kaur & Ors.Vs. Dilbagh Singh 1998 PLJ 156, wherein this court held, that when the summons were sent through registered cover under the acknowledgment, and were received back with the report of refusal, though the report of postman is admissible in evidence to draw a presumption but this is rebuttable. In the said case the party had appeared in the court and deposed that no postman had come with the registered notice to serve on him. It was held that this was sufficient to rebut the initial presumption, and thereafter it was for the plaintiff to show that the report of postman was correct. In the said case for want of deposition of postman, it was held that the defendant was not properly served. Reliance was also placed on the judgment of this court in the case of Babu Ram Vs. Satish Kumar Rawal 1991 PLJ 447, wherein the plea was raised that false report was prepared in collusion with the process server. The defendant in the witness box deposed that he was not served, it was held to be sufficient to dispel the presumption, and the onus was shifted to the plaintiff to prove due service. The learned lower appellate court in view of the settled law CR No.4447 of 2006 6 held, that in the present case except for the statement of defendant no other evidence was led to prove the due service. Therefore, it was proved that the defendants/respondents, were not served. The learned lower appellate court also held, that by setting aside ex pare decree the defendants/respondents were not going to gain anything but would have right to contest the suit, for its decision on merit. The learned lower appellate court also rejected the finding of the learned trial court that application Ex.R.2 was sufficient to prove due service by recording that there was no material on file to show the filing of application. The application Ex.R.2 did not bear the signatures of the defendants or counsel, nor any order was passed. Learned lower appellate court also referred to zimni order, and found that no such application was on record. The learned court, therefore, held that, the finding of the learned trial court was perverse. The learned lower appellate court, also held that there was certain interpolation as it was noticed that date 12.3.1994, against word peshi was altered to some other date. Learned lower appellate court considered the fact that the defendant/respondents were proceeded against ex parte vide order dated 28.5.1992, but the summons of munadi attached with the suit file showed that initially process server made a report on 6.5.1992, stating therein that chowkidar did not conduct munadi or affixation for the reason that defendants/appellants, were not residing in the village but later on the same summons munadi was effected on 20.5.1992, without order of the court. It is the admitted case of the parties that no order by the court CR No.4447 of 2006 7 was passed for effecting munadi at the same village in spite of report of the Chowkidar/process server. The learned appellate court on the appreciation of oral and documentary evidence on record of the case held that the defendants/ respondents were not served and that the application for setting aside ex parte decree was filed within limitation, from the date of knowledge. As a result of findings referred to above appeal was accepted and the ex parte decree was set aside. The parties were directed to appear before the learned trial court on 5.6.2006, for further proceedings. Mr. Gagandeep Singh, learned counsel appearing on behalf of the petitioners, challenged the order passed by the learned lower appellate court by contending that the findings recorded by the learned lower appellate court can not be sustained, as it was proved, that the defendants/respondents had knowledge of the proceedings. Therefore, in view of the proviso to Order 9 Rule 13 of the Code, ex parte decree could not be set aside merely for want of irregularity in the service. The contention of the learned counsel for the petitioners was, that in this case notices were sent through process server, in which one of the defendants was served but other defendants were not served. After having been satisfied, that it was not possible to serve the defendants/respondents by ordinary process, substituted service by munadi was ordered. Jagir Singh Chowkidar did not effect munadi on 5.3.1992 by reporting that defendants/respondents were not residing in the village. Jagir Singh Chowkidar again refused to effect munadi on CR No.4447 of 2006 8 6.5.1992 by recording that the defendants/respondents were not residing in the village. Thereafter summons were marked to some other Chowkidar by claiming that Jagir Singh was not Chowkidar of the village. Thereafter munadi was effected on 20.5.1992. In view of the report of munadi ex parte proceedings were taken and suit was decreed. The contention of the learned counsel for the petitioners was that these facts clearly proved that the proceedings were in the knowledge of the defendants/respondents and they were duly served. Learned counsel for the petitioners in support of the contention that it was for the defendants/respondents to prove that they were not served relied upon the judgment of Hon'ble Supreme Court in the case of Basant Singh & Anr. Vs. Roman Catholic Mission AIR 2002 SC 3557, wherein Hon'ble Supreme Court was pleased to lay down that mere irregularities in effecting substituted service could not be a ground to set aside an ex parte decree In the judgment Hon'ble Supreme further laid down that issuance of summon for service by post on the correct address is presumption of service and if the registered cover is sent on correct and given address, there is presumption of service. It is for the opposite party to rebut the presumption. In the said case the respondent was not believed for want of examination of postman. The judgment has no relevance to case in hand as no service by registered cover was ordered. Learned counsel for the petitioners placed reliance on the judgment of this court in the case of Mela Singh Vs. Kartar Singh & Anr. 1961 PLR 919, wherein this court laid down, that when a memorandum of CR No.4447 of 2006 9 appeal, as first presented, contains an explanation of delay in presenting it, the court shall take into consideration the explanation offered, and may examine the appellant or his agent, but incase court is of opinion that assuming all the facts stated by way of explanation to be true and explanation is insufficient, the court is to record the order to that effect, and reject the appeal as barred by time. The contention of the learned counsel for the petitioners, therefore, was that once it was proved that application was filed beyond 30 days it was liable to be rejected, as no explanation was forthcoming for the delay in filing the appeal, nor any application under Section 5 of the Limitation Act was moved for condonation of delay. Mr.Alok Jain, learned counsel for the respondents No.1 and 2, on the other hand, contended, that the learned lower appellate court was right in setting aside ex parte decree as the initial onus of non-service was discharged by the defendants/respondents by stating in the court that he has not been served. The contention of the learned counsel for the respondents was, that it was for the petitioners to prove the due service, but the plaintiffs/petitioners failed to discharge their onus as they neither examined the process server or the chowkidar. In support of this contention learned counsel for the respondents placed reliance on the judgment of this court in the case of Rattan Singh Vs. Harbilas 1970 PLR 926. Learned counsel for the respondents also contended, that there is no force in the contention raised by the learned counsel for the petitioners that the application was time barred as limitation was to commence from the CR No.4447 of 2006 10 date of knowledge. On consideration, I find no force in the contentions raised by the learned counsel for the petitioners. In this case, the plaintiffs/petitioners had failed to prove the service of notice on the respondents. It is admitted fact, that the respondents/defendants, were not served by ordinary process and were ordered to be served by way of substituted service. It is also the admitted fact that summons issued by the court by munadi were received back with the report of the Chowkidar that munadi was not to be effected as no person by the name was residing in the village. The report was not put up before the learned Judge for getting an order, thereafter without any order summons were again sent for effecting munadi. Second time again report was that no munadi could be effected. Thereafter, without the knowledge and order of the court, the munadi was ordered to be effected through a different chowkidar, by stating that Jagir Singh was not Chowkidar of village. In the absence of the order of the court it was not open to the process serving agency of their own to get the summons effected through other Chowkidar. The Chowkidar effecting the munadi was not examined to prove the case, the service on the respondents was, thus, not proved. This was for the petitioner to clarify by examining the process server/chowkidar. Petitioners did not examine either process server or the Chowkidar to prove the due service on the defendants/respondents, which on peculiar facts is hard to believe. CR No.4447 of 2006 11 The contention of the learned counsel for the petitioners, that the application was time barred is also misconceived. Under the Limitation Act, 30 days' period for setting ex parte decree is to be counted from the date of decree, or from the date of knowledge. The defendants/respondents had filed application within limitation from the date of knowledge. The plaintiffs/petitioners failed to prove any knowledge of the proceedings, as Ex.R.2 was rightly rejected by learned lower appellate court. Therefore, learned lower appellate court was right in holding that the application was within limitation. The judgment relied upon by the petitioners does not advance their case. Learned lower appellate court rightly held, that by setting aside ex parte decree no prejudice was caused to the plaintiffs/petitioners, as the defendants/respondents would only get a chance to contest the suit on merit. For the reasons stated finding no merit in the revision petition, it is ordered to be dismissed, but with no order as to costs. 09.08.2010 (Vinod K.Sharma) rp Judge