CR No. 5872 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 21825-CII of 2007 and CR No. 5872 of 2007 (O&M) Date of Decision: 2.9.2009 Baldev Singh ....Petitioner. Versus Kulbir Singh ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. R.S. Chahal, Advocate for the petitioner. Mr. S.S. Godara, Advocate for the respondent. AJAY KUMAR MITTAL, J. C.M. No. 21825-CII of 2007 Allowed as prayed for. C.R. No. 5872 of 2007 The petitioner-defendant No.2 in the instant revision has impugned order dated 4.10.2005 passed by the trial court whereby an application filed by him for setting aside the ex parte judgment and decree dated 11.3.2002 was dismissed and also the order dated 4.10.2007 vide which, on appeal, that order was affirmed by the lower appellate court. The plaintiff-respondent had filed a suit for permanent injunction claiming himself to be the owner in possession of the suit CR No. 5872 of 2007 -2- property on the basis of the sale deed dated 20.3.1995 which was decreed by the trial court ex parte on 11.3.2002. Defendant No.2 then filed an application for setting aside the ex parte judgment and decree on the ground that he had no knowledge about the pendency of the suit as he was never served. The trial court on the application filed by the petitioner- defendant No.2 for setting aside the ex parte judgment and decree dated 11.3.2002 framed the following issues:- “1. Whether the ex parte proceedings taken against the applicant are illegal, baseless and are liable to be set aside, as alleged in the application? OPA 2. Whether the impugned order and decree dated 11.3.2002 is wrong against law and facts and liable to be set aside as alleged in the plaint?OPA 3. Relief.” Issues No.1 and 2 being material for the decision of the application were taken up together and on appreciation of the evidence led by the parties, the trial court held that the ex parte proceedings and the judgment and decree dated 11.3.2002 against defendant No.2 were perfectly legal. Accordingly, the trial court vide order dated 4.10.2005 dismissed the said application. Feeling aggrieved, defendant No.2 took the matter in appeal and the lower appellate court vide order dated 4.10.2007 affirmed the order passed by the trial court and dismissed the appeal. CR No. 5872 of 2007 -3- I have heard the learned counsel for the parties and have perused the file with their assistance. On a query being put by the Court as to what was the right of defendant No.2 in the suit property, learned counsel for the petitioner- defendant No.2 submitted that he is claiming the right on the basis of adverse possession. Learned counsel, however, submitted that the findings recorded by the courts below on issues No. 1 and 2 were erroneous and against the record and, thus, were liable to be set aside. On the other hand, learned counsel for the plaintiff- respondent submitted that both the courts on appreciation of the evidence led by the parties concluded that there was no ground to set aside the ex parte judgment and decree dated 11.3.2002 and, therefore, the application filed by defendant No.2 in that regard was rightly dismissed by the courts below. The trial court while dismissing the application of the petitioner vide order dated 4.10.2005, in paras 8 and 9 of its order, observed as under:- “8. From the perusal of the records of the case, it is observed that the respondent/plaintiff Kulbir had instituted civil suit No. 616 on 31.3.95 against Ram Singh and Baldev Singh both sons of Tahal Singh. As per order dated 31.3.95, it is observed that both the defendants were ordered to be summoned on the very first day. On 24.4.95, the summons of the applicant/defendant No.2 were received back improperly served and, therefore, he was ordered to CR No. 5872 of 2007 -4- be summoned again for 14.6.95. On that day, his summons were received back with the report that he had refused to accept the same and, therefore, he was ordered to be summoned by way of munadi for 12.10.95. The munadi was returned duly served but no one came forward to contest the case on behalf of the applicant and he was consequently proceeded against ex parte. The matter was contested by defendant No.1 and ultimately, the suit was decreed in favour of the respondent/plaintiff vide judgment and decree dated 11.3.2002. 9. The original summons are available on record and it is observed that two defendants Ram Singh and Baldev Singh are real brothers. That on the summons for 24.4.95, it has been reported that when Baldev was given the summons, he had refused to accept the same and, therefore, a copy of the summons along with the copy of the plaint had been pasted on his residence. On the basis of this report, fresh summons were ordered to be issued for 14.6.94. The summons were again received with the report that his premises were found locked. Both these reports have been attested by Sardul Singh, Chowkidar and Pyare Lal, Chowkidar respectively. Thereafter, the applicant was ordered to be summoned through Munadi which has been received CR No. 5872 of 2007 -5- back duly served for 12.10.95. Though no specific order for issuance of a registered notice had been issued, a registered notice has also been issued to the applicant and the postal receipts are available on record. It is evident from the above returned summons that the court had taken all proper measures to ensure that the applicant was duly served. Service of notice was effected upon the applicant not only by means of summons, but also by beat of drum, affixation as well as by registered notice. It is, thus, obvious that the court was perfectly justified in proceeding against ex parte against the applicant on 12.10.95.” The order of the trial court on appeal had been upheld by the lower appellate court. In view of the above, no illegality or perversity could be pointed out by the learned counsel for the petitioner-defendant No.2 in the orders passed by the courts below which may warrant interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. Accordingly, there is no merit in this revision petition and the same is hereby dismissed. September 2, 2009 (AJAY KUMAR MITTAL) gbs JUDGE