CR No.5498 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5498 of 2008(O&M) Date of decision: 26.2.2009 Jai Dev ......Petitioner Versus Dera Smadh Baba Budh Dass and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.S. Sullar, Advocate for the petitioner. Mr. M.K. Singla, Advocate for the respondents. * * * Rakesh Kumar Garg, J. CM No.4755-CII of 2009 Application is allowed, as prayed, subject to all just exceptions. CR No.5498 of 2008(O&M) The present revision petition has been filed by the defendant- Jai Dev challenging order dated 9.9.2008 passed by the Civil Judge (Jr. Division), Sunam whereby his application for setting aside the ex parte order dated 27.8.2002, was dismissed. As per the averments made by the petitioner, the plaintiff- respondents filed suit for permanent injunction against the petitioner and proforma respondents No.3 to 8 that the plaintiff is in original possession of the land in dispute and the defendants have no concern with the same and are trying to illegally interfere and dispossess the plaintiffs. The petitioner was proceeded against ex parte vide order dated 27.8.2002. Thereafter, the petitioner filed an application for setting aside the said ex parte order which was dismissed vide the impugned order. CR No.5498 of 2008(O&M) 2 Challenging the aforesaid order, counsel for the petitioner has vehemently argued that no summons were ever served upon him and the observations of the trial Court that the petitioner was personally served as his thumb impression is there on the summons is wholly against the record of the case as the petitioner is educated enough to sign in Punjabi but the summons regarding the personal service of the petitioner bear thumb impression and under such circumstances, it cannot be ruled out that actually the petitioner was never served. Learned counsel for the petitioner has further argued that the trial Court has wrongly observed that the petitioner has not pleaded the fact that the thumb impression on the summons is not that of the petitioner. In fact, the petitioner had pleaded that he is an educated person and therefore, it was the bounden duty of the Court to verify the fact as to whether the thumb impression over the summons was that of the petitioner or somebody else and without considering this fact, the trial Court dismissed the application which has resulted into miscarriage of justice to the petitioner and thus, the impugned order is liable to be set aside. On the other hand, learned counsel for the respondents has vehemently argued that the present revision petition is without any merit and is liable to be dismissed as a presumption of truth is attached to the report of the Process Server who has attested his report on oath after effecting service on the petitioner in the presence of the witnesses and simply because the petitioner can sign in Punjabi does not ipso facto prove that the thumb impression on the summons was not that of the petitioner. The petitioner has not led any evidence to rebut the presumption of truth attached to the report of the Process Server. Moreover, the petitioner along with co-defendants had filed an appeal against the order dated 16.9.2002 passed by the trial Court on an application filed by the plaintiff- CR No.5498 of 2008(O&M) 3 respondents under Order 39 Rules 1 and 2 CPC which was dismissed. Revision against the aforesaid order was also dismissed by this Court. I have heard learned counsel for the parties. Keeping in view the uncontroverted facts as stated by the learned counsel for the plaintiff-respondents, I find no merit in this revision petition. The plaintiff-respondents vide C.M. No.4755-C of 2009 has placed on record a copy of the judgment dated 24.12.2002 passed by the Additional District Judge, Sangrur in CMA No.38 of 4.10.2002 titled as Gobind Singh and others v. Dera Smadh Baba Budh Dass and another whereby order dated 16.9.2002 passed by the Civil Judge (Jr. Division), Sunam in Civil Suit No.240 of 17.8.2002 on an application filed by the plaintiffs under Order 39 Rules 1 and 2 CPC, was upheld. In this appeal, the petitioner has been shown as appellant No.2. Thus, learned counsel for the petitioner was unable to controvert this fact that he has challenged the order passed by the trial Court in the civil suit granting ad interim injunction to the plaintiff-respondents. Once that is so, it cannot be said that the petitioner was not in knowledge of the proceedings before the trial Court with regard to filing of the suit against him. I also find force in the contention of the learned counsel for the respondents that presumption of truth is attached to the report of the process server which has been attested by him on oath. There is no evidence on record to rebut the aforesaid report of the Process Server. Thus, I find no fault in the impugned order. The revision petition is dismissed. February 26, 2009 (RAKESH KUMAR GARG) ps JUDGE