CR No.173 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.173 of 2004 Date of Decision: 4.09.2009 Lachhman Dass ...Petitioner Vs. Karam Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Yogesh Chaudhary, Advocate, for the petitioner. None for the respondents. --- 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 Digest? --- Vinod K.Sharma,J. (Oral) This revision is directed against the order dated 20.9.2003 passed by the learned courts below vide which application moved by the petitioner under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure (for short the Code) for setting aside ex parte decree dated CR No.173 of 2004 2 14.9.1991 was ordered to be dismissed. Plaintiff/respondents filed a suit for possession by way of pre- emption in the year 1991. Petitioner was impleaded as defendant No.5 along with proforma respondents. The petitioner was ordered to be proceeded ex parte. Ex parte decree against the petitioner was passed on 14.9.1991. The case set up by the petitioner in the application was that he came to know about the decree on 9.4.1992 and immediately thereafter moved an application for setting aside ex parte decree on 10.4.1991. Property in dispute is vacant plot. Learned courts below found as a matter of fact that the petitioner was not served in accordance with law. However, he was non- suited only on the ground of limitation by holding that the application moved was beyond 30 days of knowledge. Order passed by the learned appellate court reads as under:- “15. There is absolutely no dispute with the proposition of law that before ordering service through munadi the court has to record the findings that the service of the defendant is not possible in the ordinary process. In the instant case, no such findings has been recorded by the learned trial court in its interim order dated 21.12.1990 before issuance of the notice through munadi against the appellant-defendant rather vide this order, the plaintiff was directed to furnish the correct address of defendants 2 and 5. Hence the correct legal procedure before issuance of notice through munadi has not been followed by the learned trial court. CR No.173 of 2004 3 16. However, in order to get ex parte decree set aside,the application under Order 9 Rule 13 CPC has to be moved within the period of limitation as provided under article 123 of the Limitation Act, 1963 which reads as under:- Description of application Period of limitation Time from which period begins to run To set aside a decree passed ex parte to re- hear an appeal decreed or heard ex parte. Explanation: For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service. Thirty days The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. As per above provision of law the application for setting aside the decree passed ex-parte the application has to be filed within a period of 30 days from the date of decree or where the summons or notice was not only served when the appellant had knowledge of the decree. In the instant case, in view of my above discussion as issuance of the notice through munadi to the defendant appellant was not in accordance with law, so the case of the defendant appellant will fall in the second category and the defendant appellant can file the application for setting aside the ex parte decree dated 14.9.1991 within 30 days from the date of the knowledge of the decree. 17. The defendant appellant has alleged that he came to know that the decree on 9.4.1992 when he went to the spot and Karam Singh, one off the plaintiff informed him about the ex CR No.173 of 2004 4 parte decree. Lachhman Dass defendant appellant appeared as AW 1 and in his statement also he stated that on 9.4.1992 he went to the land in dispute and Karam Singh met him there. He told him that they had obtained the decree of the land, so as per the specific case of the defendant appellant, he acquired the knowledge regarding the decree on 9.4.1992 and on the next day i.e. 10.4.1992 he filed the present application. 18. But this version of the defendant appellant stands belied from his admission in the cross examination. He has admitted in the cross examination that now the land is in possession of Karam Singh and he has taken the possession by executio of the decree. From the perusal of the execution file, it comes out that the warrant of possession were issued by the learned trial court. The report on the warrant of possession dated 23.1.1992 depicts that the possession of the land was transferred to Karam Singh, Baljit Singh, Pritam Singh from Kartara, Pala sons of Chhaju, Sewa Singh, Dile Ram and Lachhman Dass on 23.1.1992. It is further mentioned in the report that munadi was also effected in the loud voice in the village regarding delivery of the possession. Thus, the defendant appellant can not wriggle out from this position that he acquired knowledge regarding the decree on 23.1.1992 with the delivery of the possession of the suit land to the plaintiffs by way of execution of the decree. But the present application has been filed by the defendant appellant on 10.4.1992 i.e. after a period of 77 days CR No.173 of 2004 5 from 23.1.1992 when the defendant appellant acquired knowledge regarding the decree. The plea of the appellant defendant that he acquired the knowledge of the decree on 9.4.1992 is not believable. Thus, the present application is hopelessly time barred and has been filed much after the expiry of period of limitation. 19. Thus, keeping in view the fact that the application is time barred, there do not exist sufficient grounds for setting aside the ex parte decree dated 14.9.1991. Hence, I have no reason to differ with the conclusion of the learned Trial Court on issues No.1 an 3.Hence, the findings of the learned trial Court on issues No.1 and 3 stands affirmed.” Learned counsel for the petitioner contends that the impugned order is the outcome of misreading of evidence. Contention of the learned counsel for the petitioner is that in cross -examination he had admitted the date of knowledge to be 9.4.1992 besides possession of the plaintiff/respondent. The contention of the learned counsel for the petitioner is that not only that he was not served in the suit even in the execution application no notice was issued to the petitioner. It is further the contention of the learned counsel for the petitioner that it was a vacant plot and it was only on 9.4.1992 when he went to raise construction thereon that he was told by the plaintiff/respondents that they obtained decree for possession. It is also not proved on record as to when the pre-emption money was deposited, and none was offered to the petitioner before ordering prosecution. The learned CR No.173 of 2004 6 courts below committed an error in attributing knowledge to the petitioner from the date of the execution of the decree. There is force in this contention. Learned courts below held that the service was not proper and furthermore, there was nothing on record to show that notice of the execution was given or that possession was given in his presence. The statement about knowledge on 9.4.1992, could not be doubted in the absence of any other positive evidence. The application filed by the petitioner, therefore, could not be said to be barred by limitation as held by the learned courts below. On merit the learned courts below have already recorded a finding that the service on the petitioner was not proper. Consequently, the revision petition is allowed. The impugned orders of the learned courts below are set aside. The application moved by the petitioner under Order 9 Rule 13 of the Code stands allowed, and the case is remanded back to the learned trial court for adjudication, in accordance with law after permitting the petitioner to contest the suit. (Vinod K.Sharma) 4.09.2009 Judge rp