Civil Revision No. 1388 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 1388 of 2009 Date of decision : December 15, 2010 Mohinder Kaur ....Petitioner versus Raj Mohinder Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sudeep Mahajan, Advocate, for the petitioner Mr. BR Mahajan, Advocate, for respondent nos. 1 and 2 L.N. Mittal, J. (Oral) This is revision petition by Mohinder Kaur filed under section 115 of the Code of Civil Procedure (in short, CPC). Petitioner was defendant no. 2 in suit filed by Raj Mohinder Singh and Manpreet Singh (respondents no. 1 and 2 herein/plaintiffs) against petitioner and respondents no. 3 to 6. The defendants were proceeded against ex parte in the suit. Suit was decreed vide ex parte judgment and decree dated 4.8.1998, Annexure P/2 by learned Civil Judge (Junior Division), Amritsar. Defendant no. 2 – petitioner moved application Annexure P/1 for setting aside the ex parte judgment and decree alleging that she was not Civil Revision No. 1388 of 2009 -2- served with summons in the suit. She never refused to receive the summons. Report of Process Server regarding her refusal is incorrect. The said report was procured by the plaintiffs on 19.3.1997 on summons issued on 18.3.1997 for 21.3.1997. After refusal report petitioner and some other defendants were ordered to be summoned through munadi (proclamation by beat of drum and affixation). The Process Server reported that address of petitioner and other defendants was incorrect. The plaintiffs then filed false affidavit that address of the applicant (petitioner) was correct. Again report of munadi was procured by the plaintiffs and on its basis the applicant and other defendants were proceeded ex parte. Defendants no. 3 to 5 (respondents no. 4 to 6 herein) were not residents of village Wadali Guru and their correct addresses were not furnished. No summons was sent by registered post. The petitioner learnt of the alleged order when plaintiff- respondent no. 1 declared in the village that he had got set aside the sale deed which was in favour of the petitioner. Thereafter the petitioner contacted her lawyer and after inspecting the record came to know of the ex parte judgment and decree. The application was resisted by the plaintiffs. Averments made in the application were controverted. Various other pleas were also raised. Learned Civil Judge (Junior Division), Amritsar vide impugned order dated 13.8.2007 dismissed the application moved by the petitioner for setting aside the ex parte judgment and decree. Appeal preferred by the petitioner against the said order of the trial court has been dismissed by learned Additional District Judge, Amritsar vide impugned judgment dated Civil Revision No. 1388 of 2009 -3- 5.2.2009. Feeling aggrieved, the petitioner has filed the instant revision petition. Learned counsel for the petitioner vehemently contended that report regarding refusal by petitioner to accept the summons has been witnessed by plaintiff no. 1 and not by independent witness. However, the said report cannot be discarded merely on this ground. In villages a stranger to the lis would not like to become witness to such report and would not like to invite unnecessary enmity with the concerned defendant. Learned counsel for the petitioner also contended that on process of munadi, address of petitioner and defendant no. 3 to 5 was reported to be incorrect but false affidavit was filed by plaintiff no. 1 that address given in the suit was correct and munadi was effected on the said address. This contention also cannot be accepted because address of the petitioner given in the plaint is the same as given by the petitioner in application Annexure P/1 filed under Order 9 Rule 13 read with section 151 CPC for setting aside the ex parte judgment and decree. Consequently, it does not lie in the mouth of the petitioner that affidavit filed by plaintiff no. 1 in this regard was false. On the contrary, by alleging the said affidavit to be false, the petitioner obviously meant to say that her address given in the plaint was not correct. However, in fact this plea of the petitioner herself is false and erroneous because admittedly the petitioner is resident of said address and affidavit filed by plaintiff no. 1 to this effect was not false. Learned counsel for the petitioner also contended that after alleged refusal by petitioner to accept the summons, the Process Server affixed the summons at the spot and not at the house of the petitioner. This Civil Revision No. 1388 of 2009 -4- contention is misconceived because reading the report of the Process Server as a whole as reproduced in the revision petition, it would mean that the summons were affixed at the residence of the petitioner. It is mentioned that the Process Server went to the spot for effecting service. In this context 'spot' would indicate address of the concerned defendant i.e. address of the instant petitioner in the instant case. After refusal, summons was also affixed at the spot i.e. at the address of the petitioner. Moreover, after said report dated 19.3.1997, the petitioner was again served by substituted service by munadi and affixation of summons. Report dated 24.11.1997 of the Process Server in this regard as reproduced in the revision petition would depict that munadi was effected in the village and copy of the summons was affixed at public place. This was sufficient compliance for service of the petitioner. In addition to the aforesaid, the application moved by the petitioner for setting aside the ex parte judgment and decree is also barred by limitation. The application was moved on 29.5.1999 for setting aside the ex parte judgment and decree dated 4.8.1998. The application was, thus, moved almost ten months after passing of the decree whereas limitation period is 30 days. It is correct that where substituted service is effected under Order 5 Rule 20 CPC then limitation period commences from the date when the applicant had knowledge of the decree, as stipulated in explanation to Article 123 of the Schedule to the Limitation Act, 1963. It was contended by learned counsel for the petitioner that the petitioner learnt of the ex parte judgment and decree in May, 1999 and therefore, the application moved on 29.5.1999 is within limitation. It was also contended Civil Revision No. 1388 of 2009 -5- that mere knowledge of pendency of the suit without knowledge of date of hearing would not be sufficient to deny setting aside the ex parte judgment and decree. Reliance in support of this contention has been placed on judgments of Hon'ble Supreme Court in Sushil Kumar Sabharwal versus Gurpreet Singh and others, 2002(5) Supreme Court Cases 377 and Mahabir Singh versus Subhash & Ors., 2008(1) Civil Court Cases 88 (SC) and a judgment of this Court in Dalip Kumar Ghai versus Daljit Singh Boparai, 2009(3) Civil Court Cases 201 (P&H). On the other hand, counsel for respondents no. 1 and 2- plaintiffs contended that petitioner had filed partition application which was adjourned sine die vide order dated 3.6.1997, Annexure R/3 passed by Assistant Collector Ist Grade. Petitioner preferred appeal against the said order. Said appeal was decided vide order dated 18.3.1999, Annexure R/4 passed by the Collector. In the said order, the petitioner alleged that civil court had not stayed the proceedings of the partition application and therefore, order of the Assistant Collector Ist Grade, Annexure R/3 adjourning the case sine die is untenable. It was also observed in order Annexure R/4 by the Collector that the civil suit pending between the parties had already been decided finally. Thus, while order dated 18.3.1999, Annexure R/4 was passed by the Collector, petitioner had knowledge of final decision of the suit and therefore, it is contended that the application Annexure P/1 moved on 29.5.1999 by the petitioner is barred by limitation. It was also contended that the petitioner has not alleged in application Annexure P/1 as to when she came to know of the ex parte judgment and decree and in the witness box she did not say how she came to Civil Revision No. 1388 of 2009 -6- know about the ex parte judgment and decree. It was also contended that in the witness box, the petitioner in her cross-examination Annexure R/2 admitted that she had come to know of the passing of the decree in the eight month of 1998 (August, 1998) and consequently application Annexure P/1 filed on 29.5.1999 is hopelessly barred by limitation. Counsel for the petitioner tried to explain that the petitioner in her aforesaid cross- examination had denied the suggestion that she came to know of the decree in August, 1998. I have carefully considered the rival contentions. Perusal of orders Annexures R/3 and R/4 passed by revenue courts in partition proceedings makes it abundantly clear that even on 3.6.1997 the petitioner was well aware of the pendency of the civil suit although date of hearing of the civil suit is not mentioned in order Annexure R/3. However, when order Annexure R/4 dated 18.3.1999 was pronounced in the presence of counsel for the present petitioner, it became evident that the civil suit had finally been decided. Consequently, even if it be assumed that the petitioner learnt of the ex parte decree on 18.3.1999 even then application Annexure P/1 moved on 29.5.1999 is barred by limitation and even no application for condonation of delay in filing the application was moved nor there is any ground for condoning the said delay. Moreover from the testimony of the petitioner herself in cross-examination it is manifest that she had learnt of the ex parte decree in August, 1998 itself and therefore, the application moved on 29.5.1999 is hopelessly barred by limitation. It is also significant to notice that in application Annexure P/1 it has been no where alleged as to when she came to know of the ex parte decree. On the Civil Revision No. 1388 of 2009 -7- contrary, she alleged that plaintiff no. 1 declared in the village that he had got the sale deed set aside and then the petitioner learnt of the decree. However, in the witness box, the petitioner did not state as to how she learnt of the ex parte decree, although she stated that she learnt of it in May, 1999. However, her statement about her getting knowledge in May, 1999 is beyond her pleadings in application Annexure P/1 and therefore, cannot be considered. There is no evidence as to how the petitioner learnt of the ex parte decree. Moreover, if plaintiff no. 1 had declared openly in the village then the petitioner should have examined some body from the village in support of this version but except bald testimony of the petitioner no other witness has been examined by her. In fact as already noticed even the petitioner herself has not stated that plaintiff no. 1 declared in the village about setting aside of the sale deed and thereupon the petitioner acquired knowledge of the decree. Thus, examined from any angle it is manifest that version of the petitioner as to how and when she acquired knowledge of the decree is completely untenable. It is further manifest that application Annexure P/1 moved by the petitioner for setting aside ex parte judgment and decree is hopelessly barred by limitation. For the reasons aforesaid, I find no merit in the instant revision petition which is accordingly dismissed. ( L.N. Mittal ) December 15, 2010 Judge 'dalbir'