Civil Revision No.4447 of 2011 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No.4447 of 2011 Date of Decision: 25.7.2011 Bharat Sanchar Nigam Limited …Petitioner Versus M/s Jagdamba Rice Mills …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Madan Mohan, Advocate for the petitioner. Kanwaljit Singh Ahluwalia, J. (Oral) In the present petition, the order dated 18.3.2011 (Annexure P6), passed by the Court of Additional Civil Judge (Senior Division), Karnal, is assailed whereby he had allowed the application filed by the respondent for setting aside the ex parte order dated 17.5.2005 (Annexure P3) and the ex parte judgment and decree dated 8.6.2009 (Annexure P4), passed in Civil Suit No. 234 of 2003. Briefly stated, the petitioner has instituted a suit for recovery of ` 2,46,954 along with interest from the respondent/defendant. It was pleaded in the suit that the defendant was subscriber of a telephone issued by the petitioner/plaintiff and the respondent/defendant had not paid dues amounting to ` 2,46,954. On 17.5.2005, the respondent/defendant was proceeded against ex parte. Thereafter, an Civil Revision No.4447 of 2011 2 application was filed by the defendant that on 4.12.2009, he learnt that the execution proceedings are pending and the order regarding ejectment of the property has been passed, therefore, he approached the trial Court for setting aside the ex parte order dated 17.5.2005 and the ex parte judgment and decree dated 8.6.2009, passed in Civil Suit No. 234 of 2003. The Court of Additional Civil Judge (Senior Division), Karnal, after the pleadings have been concluded, formulated the following issues:- “1. Whether the judgment and decree dated 17.5.2005 is liable to be set aside on the grounds mentioned in the application? OPA 2. Whether the application is not maintainable? OPR” The trial Court, after appreciation of evidence, adduced by the parties, held that from the testimony of RW.5 Naresh Kumar, Process Server, it is evident that summons were issued in the name of company through its Director without mentioning any specific name therein. He was not able to disclose as to whose office he had gone. He further stated that the persons present in the office were not known to him. He was also unable to recognize the persons who were present in the office. Therefore, the trial Court held that it cannot be said that Satpal Gupta had refused to put his signatures on the summons. The trial Court further held that RW.4 Sardrai Lal, who had allegedly effected munadi against the respondent/defendant was not able to state the year and month when such munadi was effected and at that time, he had not Civil Revision No.4447 of 2011 3 joined any witness from the public. Therefore, the trial Court held that it cannot be inferred that the respondent/defendant was in knowledge of the proceedings of the case. Learned counsel for the petitioner/plaintiff has read over the relevant portion of the impugned order wherein contention of respondent/defendant has been noticed that he learnt about the pendency of execution proceedings on 4.12.2009. Learned counsel further submits that from the testimony of RW.3 Harbans Lal, Bailiff, it is apparent that on that day he had only met Security Guard and not the respondent/defendant. Therefore, learned counsel submits that the statement made by respondent/defendant Satpal Gupta should not be given any credence as it is not discernible as to how he came to know about the pendency of execution proceedings. Even if the argument raised by learned counsel for the petitioner/plaintiff is taken on its face value, Satpal Gupta had learnt about the pendency of the execution proceedings on 4.12.2009 i.e. the day when the limitation would commence. It is not the case of the petitioner/plaintiff that Satpal Gupta had learnt about the pendency of execution proceedings on any date earlier to 4.12.2009. It has also come in the testimony of RW.3 Harbans Lal, Bailiff, that the Security Guard, at the house of Satpal Gupta, had met him. That being so, no fault can be found with this part of the evidence. Even otherwise, fair play and balance of equities demand that the suit should be contested on merits, especially when the petitioner/plaintiff has failed to prove that due service was effected upon the respondent/defendant. Thus, no infirmity can be found in the impugned order. Civil Revision No.4447 of 2011 4 Hence, no interference is warranted in the present petition and the same is hereby dismissed, in limine. (Kanwaljit Singh Ahluwalia) Judge July 25, 2011 “DK”