-1- Civil Revision No.1104 of 2011 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: February 21 , 2011. Civil Revision No.1104 of 2011 (O&M). Paramjit Singh ... Petitioner VERSUS Gurdial Singh and others ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.A.K. Chopra, Senior Advocate,with Mr.Harminder Singh, Advocate, for the petitioner. -.- MOHINDER PAL, J. Plaintiff-petitioner Paramjit Singh is aggrieved against the order passed by the trial Court whereby on an application made by defendant No.2 Gurdial Singh (respondent No.1 herein), under Order 9 Rule 13 of the Code of Civil Procedure (for short `the Code'), the ex parte judgment and decree dated 23.10.2002 -2- Civil Revision No.1104 of 2011 (O&M). passed by the trial Court in Civil Suit No.233 of 14.11.1998 was set aside and defendant No.2 was allowed to contest the said civil suit. After hearing the learned counsel for the petitioner and perusing the impugned order, I do not see any ground warranting interference in the impugned order passed by the trial Court. Plaintiff-petitioner Paramjit Singh and defendants Nos. 1 and 2, namely, Avtar Singh and Gurdial Singh are real brothers. Defendants Nos. 3 to 6, namely, Kuldip Kaur, Harbhajan Kaur, Parminder Kaur and Balbir Kaur are the real sisters of the plaintiff and defendants Nos. 1 and 2. Defendant No.2 had gone abroad since long in the year 1978. Previously, he (defendant No.2) was residing in Belgium and thereafter settled in Luxemburg. Defendant No.2, in the application made for setting aside the ex parte judgment and decree, pleaded that the plaintiff knew that he (defendant No.2) was settled abroad, but even then he gave the wrong address of defendant No.2 i.e address of Phagwara; that defendant No.2 was never served in the suit and that he never refused to accept service of summons. He further pleaded that when he (defendant No.2) came to India on 25.11.2007 after a gap of four years and saw that the plaintiff was carrying out fresh construction claiming himself to be the exclusive owner of the property in dispute, he investigated the matter and came to know that the plaintiff had secured ex parte decree against him. He further pleaded that neither he was aware of the pendency of the -3- Civil Revision No.1104 of 2011 (O&M). suit nor passing of the judgment and decree against him. In the reply filed by the plaintiff- petitioner to the application moved by defendant No.2-respondent No.1 under Order 9 Rule 13 of the Code for setting aside the ex parte decree, it was inter alia pleaded that defendant No.2 had appointed Smt.Saroj Deol as his attorney; that she was duly served with the summons; that a copy of the plaint was supplied to her; and that she was duly informed about the date of hearing in the suit. Learned counsel for the petitioner-plaintiff argued that defendant No.2 was duly served in the case through Smt.Saroj Deol and his (defendant No.2's) service was complete in view of the provisions of Order 3 Rule 3 and Order 5 Rule 12 of the Code. Rule 3 of Order 3 of the Code provides that processes served on the recognised agent of a party shall be effectual as if the same had been served on the party in person, unless the Court otherwise directs. Rule 12 of Order 5 of the Code provides that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Learned counsel for the plaintiff-petitioner further argued that in this case, Smt.Saroj Deol had appeared as R.W.1 and deposed that she was holding general power of attorney dated 7.12.1994 (Exhibit R.2) on behalf of defendant No.2. She further deposed that defendant No.2 had appointed her as special power of attorney on 29.3.1997. She proved on record -4- Civil Revision No.1104 of 2011 (O&M). original special power of attorney dated 29.3.1997 (Exhibit R.1). She further deposed that she had informed defendant No.2 about each and every proceeding in the suit. According to the learned counsel for the plaintiff-petitioner, in the presence of the evidence of Smt.Saroj Deol (R.W.1) it stood proved on record that defendant No.2 had knowledge about the filing of the suit and, therefore, the trial Court ought not have allowed the application filed by defendant No.2 under Order 9 Rule 13 of the Code; thereby setting aside the ex parte judgment and decree dated 23.10.2002. However, I do not see any merit in the arguments raised by learned counsel for the plaintiff-petitioner in view of the fact that Smt.Saroj Deol had herself not appeared in the aforesaid suit. Obviously, therefore, the question of she having knowledge about the proceedings in the suit and further providing the information thereof to defendant No.2 did not arise. Besides, Civil Suit No.233 which was decreed ex parte by the trial Court on 23.10.2002, had been filed on 14.11.1998. The special power of attorney 29.3.1997 (Exhibit R.1) had been given by defendant No.2 to Smt.Saroj Deol in a case regarding partition titled as “Paramjit Singh Vs. Gurdial Singh, which was pending in the Court of Mr. Manjinder Singh at Phagwara Court and the other power of attorney dated 7.12.1994 (Exhibit R.2) also no where empowered Smt.Saroj Deol to accept service of summons on behalf of defendant No.2 as it empowered Smt.Saroj Deol only to act as attorney of defendant No.2 in the -5- Civil Revision No.1104 of 2011 (O&M). matter of estate of late Shri Dhanna Singh, father of plaintiff- petitioner and defendant No.2. It may be mentioned here that Smt.Saroj Deol is none else than the wife of the plaintiff- petitioner Paramjit Singh and the summons in the suit which was decreed ex parte by the trial Court were received by Smt.Saroj Deol as the attorney of defendant No.2, but she did not appear in the suit. It clearly shows that a fraud had been played upon the defendant No.2 by the plaintiff-petitioner and his (plaintiff- petitioner's) wife Smt.Saroj Deol. The plaintiff-petitioner had secured the ex parte decree by conniving with his (plaintiff- petitioner's) wife Smt.Saroj Deol to deprive defendant No.2 of his property. It is also significant to note here that the plaintiff- petitioner did not implead defendant No.2 through Smt.Saroj Deol as his power of attorney but by giving his (defendant No.2's) address as “Gurdial Singh son of Dhanna Singh r/o G.T.Road, Phagwara District Kapurthala” knowing fully well that Gurdial Singh was residing abroad. It is not understandable as to how defendant No.2 was proceeded ex parte by the trial Court after service had been effected on Smt.Saroj, wife of the plaintiff- petitioner when it had not been shown in the memo of parties of that suit that Smt.Saroj Deol was the power of attorney holder of defendant No.2. Under the circumstances, the trial Court rightly set aside the ex parte judgment and decree dated 23.10.2002 passed in Civil Suit No.233 of 14.11.1998 by passing the impugned order. -6- Civil Revision No.1104 of 2011 (O&M). Resultantly, this revision petition is hereby dismissed being without any merit. ( MOHINDER PAL ) February 21, 2011. JUDGE ak