C. R. No. 4890 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 4890 of 2009 Date of Decision : May 24, 2010 Amar Kaur .... Petitioner Vs. Badal Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashok Aggarwal, Senior Advocate with Mr. Namit Gautam, Advocate for the petitioner. Mr. M. L. Sarin, Senior Advocate with Ms. Hemani Sarin, Advocate for respondents no.1 and 2. Mr. B. B. S. Sobti, Advocate for respondents no. 3 and 4. * * * L. N. MITTAL, J. : Amar Kaur plaintiff has filed the instant revision petition under Article 227 of the Constitution of India, challenging order dated 27.04.2009 (Annexure P-1) passed by learned Civil Judge (Senior Division), Ludhiana, thereby allowing applications moved by respondents no.1 to 4 herein under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure (in short – CPC) for setting aside ex-parte judgment (Annexure P-2) and decree C. R. No. 4890 of 2009 2 dated 01.04.1997. Defendants no.1 and 2/respondents no.1 and 2 filed application (Annexure P-8) for setting aside the ex-parte judgment and decree dated 01.04.1997 alleging that they were never served in the suit and the summons were never sent at the address of defendants no.1 and 2. Order of proceeding ex-parte against defendants no.1 and 2 was obtained by getting false and frivolous reports on summons. Now, when Bailiff of the Court visited the spot to deliver possession of the suit property to the plaintiff, defendants no.1 and 2 came to know of the ex-parte decree only then. Plaintiff filed reply (Annexure P-9) to aforesaid application (Annexure P-8) and controverted the averments made by defendants no.1 and 2 in their application. It was also pleaded that in another suit filed by defendants no.1 and 2 vide plaint (Annexure P-6) against the plaintiff Amar Kaur, plaintiff Amar Kaur in her written statement dated 03.06.1992 (Annexure P-7) filed in that suit, disclosed about the pendency of the instant suit. Respondents no.3 and 4 herein, who were not party to the suit, also filed application (Annexure P-10) under Order 9 Rule 13 read with Section 151 CPC for setting aside the ex-parte judgment and decree dated 01.04.1997. It was alleged that these applicants have purchased the suit property from defendants no.1 and 2 vide sale deed dated 25.08.1995 registered on 29.08.1995 and since then, these applicants (respondents no.3 C. R. No. 4890 of 2009 3 and 4 herein) are in possession of suit property and they came to know of the ex-parte judgment and decree on 22.11.1999, when Bailiff of the Court came to the spot with warrant of possession. Various other pleas were also raised. Vide order dated 24.03.2001, passed by the trial court, respondents no.3 and 4 herein were brought on record as co-applicants with defendants no.1 and 2. The trial court, vide said order, also permitted respondents no.3 and 4 herein to lead their own evidence. Learned trial court, vide impugned order (Annexure P-1), has allowed applications moved by respondents no.1 to 4 and thereby, ex-parte decree dated 01.04.1997 has been set aside, subject to payment of Rs.8,500/- as cost. I have heard learned counsel for the parties at considerable length and perused the case file. After hearing arguments at length, it appears that defendants no.1 and 2 were not properly served in the suit. Notice of ex-parte injunction order was issued, but it appears that summons in the suit were not issued. In any case, the summons in the suit were not served on defendants no.1 and 2. Vide order dated 08.11.1996 in the suit, the trial court had directed service of summons to be effected by registered A. D. post, but it was not done. On the other hand, substituted service had already been effected by publication in a newspaper, which was not said to be of wide C. R. No. 4890 of 2009 4 circulation. Learned counsel for contesting respondents contended that issuance of notice of injunction order is not sufficient to assume service of summons in the suit. It was also contended that there was no sufficient ground for ordering substituted service of defendants by publication in newspaper nor necessary satisfaction for ordering substituted service, as required by Order 5 Rule 20 CPC, was recorded by the trial court before ordering substituted service by publication in newspaper. It was also contended that substituted service should be last resort, whereas in the instant case, substituted service was resorted to almost in the first instance. In support of these contentions, reliance has been placed on various judgments by learned counsel for the respondents. I find considerable force in the aforesaid contentions. In the case of Jeet Ram Bazigar vs. Shiv Mandir Asan Mahant Samadhi Baba Neem Nath of Village Dadlu, District Kurukshetra reported as (1989-1) P. L. R. 643, this Court set aside ex-parte decree, when summons in the suit were not sent and only notice of ex-parte injunction order was issued. In the case of Gurinder Singh Sodhi vs. Ramesh Kumari and others reported as (1997-2) P. L. R. 682, this Court held that provision of Order 5 Rule 20 CPC to order substituted service could be resorted to only if the Court had come to conclusion that service could not be effected on the defendant in ordinary course. Since no sincere attempt was made to effect service by ordinary course or by sending summons by registered post, mere C. R. No. 4890 of 2009 5 service by publication in newspaper was not sufficient. In the case of Smt. Yallawwa vs. Smt, Shantavva reported as JT 1996 (9) S. C. 218, Hon'ble Supreme Court held that substituted service under Order 5 Rule 20 CPC could be resorted to only as a last resort when defendant could not be served by ordinary procedure. In the present case, no sincere effort was made to serve summons on the defendants in the suit in ordinary course or by registered A. D. post and therefore, substituted service by publication in newspaper was not sufficient service. Learned counsel for the petitioner vehemently contended that even if defendants no.1 and 2 were not served properly in the suit or even if there was some irregularity in the service of summons on the defendants, ex-parte decree cannot be set aside merely on that ground, if defendants had notice of the date of hearing of the suit and had sufficient time to appear and answer the plaintiff's claim, as stipulated by second proviso to Rule 13 of Order 9 CPC. In support of this contention, reliance has been placed on a judgment of Hon'ble Apex Court in the case of Sunil Poddar and others vs. Union Bank of India reported as (2008) 2 Supreme Court Cases 326. It was contended that plaintiff Amar Kaur in her written statement dated 03.06.1992 (Annexure P-7) filed in suit (Annexure P-6), which had been instituted by defendants no.1 and 2 herein, had disclosed about the pendency of the instant suit, but in spite thereof, defendants no.1 and 2 herein did not appear in the instant suit and therefore, in view of provision C. R. No. 4890 of 2009 6 contained in second proviso to Order 9 Rule 13 CPC, ex-parte decree cannot be set aside. On the contrary, learned counsel for respondents no.1 and 2 pointed out that plaintiff herein in her written statement (Annexure P-7), filed in the other suit, simply mentioned about the pendency of the instant suit, but did not mention the date of hearing of this suit, and therefore, second proviso to Order 9 Rule 13 CPC is not attracted. It was contended that the said provision is attracted only when the defendant had notice of the date of hearing and also had sufficient time to appear and answer the plaintiff's claim. Learned counsel for respondents no.1 and 2, in support of this contention, relied on a judgment of Hon'ble Supreme Court in the case of Sushil Kumar Sabharwal vs. Gurpreet Singh and others reported as (2002-2) P. L. R. 382, in which it was held that it is the knowledge of `date of hearing' and not the knowledge of `pendency of suit', which is relevant for second proviso to Order 9 Rule 13 CPC. I have carefully considered the rival contentions. From a bare perusal of the statutory provision contained in second proviso to Order 9 Rule 13 CPC, it becomes manifest that for applicability of the said provision, the defendant should have notice of the date of hearing and also should have sufficient time to put in appearance. In the instant case, in view of written statement (Annexure P-7) dated 03.06.1992, filed by plaintiff herein in the other suit (Annexure P-6), which C. R. No. 4890 of 2009 7 had been instituted by present defendants no.1 and 2, the plaintiff simply disclosed about the pendency of the instant suit, but did not disclose the date of hearing thereof. It is different matter that with little or no effort, defendants no.1 and 2 could have easily found out the date of hearing of the instant suit on coming to know of the pendency thereof vide written statement (Annexure P-7). However, in the absence of disclosure of date of hearing of the instant suit in written statement (Annexure P-7), second proviso to Order 9 Rule 13 CPC is not at all attracted. Even in the case of Sunil Poddar (supra) relied on by learned counsel for the petitioner, it was held that non-service of summons is not a ground for setting aside ex-parte decree, where the defendant had notice of date of hearing and had sufficient time to appear and answer the claim (emphasis supplied). Thus, notice of date of hearing was held to be essential requirement for applicability of second proviso to Order 9 Rule 13 CPC. In the case of Sushil Kumar Sabharwal (supra) relied on by learned counsel for respondents no.1 and 2, it was expressly held that mere knowledge of pendency of suit is not sufficient to attract second proviso to Order 9 Rule 13 CPC and it is the knowledge of date of hearing of the suit, which is essential for applicability of the said provision. In the instant case, admittedly, date of hearing of the instant suit was not disclosed in the written statement (Annexure P-7) filed by Amar Kaur – plaintiff herein, in the other suit, which had been instituted by defendants no.1 and 2 herein. Consequently, second proviso to Order 9 C. R. No. 4890 of 2009 8 Rule 13 CPC is not attracted to the instant case. Learned counsel for the petitioner next vehemently contended that Mr. N. S. Gill, Advocate had put in appearance in the suit on behalf of defendants no.1 and 2 by filing `Memorandum of Appearance' and Mr. N. S. Gill, Advocate was also counsel for present defendants no.1 and 2 in the suit instituted by them vide plaint Annexure P-6 and therefore, for this reason, ex-parte decree is not liable to be set aside. This contention, although apparently attractive, also cannot be accepted. It is correct that Mr. N. S. Gill, Advocate put in appearance in the instant suit on behalf of defendants no.1 and 2 by filing `Memorandum of Appearance'. However, no vakalatnama was given by defendants no.1 and 2 in favour of Mr. N. S. Gill, Advocate for appearance on their behalf in the instant suit. It is correct that an Advocate, on getting instructions from a party, can legally and validly put in appearance on behalf of that party by filing `Memorandum of Appearance'. In this case, Mr. N. S. Gill, Advocate has been examined as witness on behalf of plaintiff-petitioner and he has stated that he had put in appearance in the instant suit on behalf of defendants no.1 and 2, on being instructed by them personally. However, it is not explained as to why defendants no.1 and 2 did not sign vakalatnama in favour of Mr. N. S. Gill, Advocate, if they had personally gone to him to instruct him to appear on behalf of them in the suit. Mr. Gill also did not appear in the instant suit later on, on behalf of defendants no.1 and 2, after once putting in C. R. No. 4890 of 2009 9 appearance on 10.05.1995. Mr. Gill also failed to produce katcha brief prepared by him on behalf of defendants no.1 and 2 in the instant suit. Mr. Gill also failed to produce his diary to depict that he had entered the instant suit in his diary. In these circumstances, mere appearance of Mr. Gill on behalf of defendants no.1 and 2 on one date of hearing by presenting `Memorandum of Appearance' would not be sufficient to interfere with the impugned order. The trial court has recorded very elaborate and detailed reasons in the impugned order for setting aside the ex-parte decree on payment of cost. Substantial justice appears to have been done by passing the impugned order by the trial court. However, cost amount is required to be suitably enhanced. Learned counsel for respondents no.1 and 2 contended that if substantial justice has been done by the trial court, then this Court, in exercise of power of superintendence under Article 227 of the Constitution of India, should not interfere with the order of the trial court. In support of this submission, reliance has been placed on a judgment of Hon'ble Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai and others reported as (2003) 6 Supreme Court Cases 675. It was inter alia held by the Supreme Court as under :- “(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a C. R. No. 4890 of 2009 10 subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any C. R. No. 4890 of 2009 11 lengthy or complicated argument or a long- drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion.........” In the instant case, it cannot be said that the trial court, by passing the impugned order, has assumed jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or the jurisdiction though available, has been exercised by the trial court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby. Consequently, in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, interference in the impugned order of the trial court is not warranted. Reference may also be made to two judgments of this Court i.e. The Punjab National Bank vs. Sita Ram and C. R. No. 4890 of 2009 12 others reported as (1991-1) P. L. R. 12 and Badal Singh and another vs. Amar Kaur and others reported as (2005-2) P. L. R. 789 and a judgment of Hon'ble Apex Court in the case of G. P. Srivastava vs. R. K. Raizada and others reported as (2000) 3 Supreme Court Cases 54. The ratio of law laid down in these judgments is that the Court should be liberal in setting aside ex-parte decree and a party should be allowed to contest the litigation and substantial justice should be done. In view of these judgments also, it would not be desirable to interfere with the impugned order of the trial court. Learned counsel for the petitioner contended that defendants no.1 and 2 had also earlier filed another suit vide plaint dated 02.04.1992 (Annexure P-4) and the said suit was dismissed as withdrawn vide order dated 06.04.1992 (Annexure P-5) and the address given by defendants no.1 and 2 in their suit Annexure P-4 is the same address which was mentioned by the plaintiff in the instant suit instituted on 18.04.1992 and therefore, it cannot be said that the plaintiff had not given correct address of defendants no.1 and 2 in the instant suit. This contention does not help the petitioner- plaintiff because defendants no.1 and 2 were not properly served in the suit, as already discussed herein before. On the other hand, address given by defendants no.1 and 2 in their plaint dated 05.05.1992 (Annexure P-6) is different address and summons were not sent to them on the said address. Learned counsel for the petitioner relied on judgment of this C. R. No. 4890 of 2009 13 Court in the case of Ajita Sharma @ Sweety alias Babi vs. Rakesh Kumar Sharma reported as (1998-2) P. L. R. 170. However, facts of the said case were quite different. In that matrimonial case under the Hindu Marriage Act, filed by the husband against the wife, the wife had even moved transfer application in the High Court for transfer of the case. In these circumstances, it was held that the wife could not plead that she had not been served with notice of the case. The wife was fully aware of the pending petition filed by the husband under Section 9 of the Hindu Marriage Act. So, the said judgment has no applicability to the facts of the instant case. Similarly, judgment of Hon'ble Supreme Court in the case of Salil Dutta vs. T. M. and M. C. Private Ltd. reported as (1993) 2 Supreme Court Cases 185 cited by counsel for the petitioner, has no applicability to the instant case. It was held in that case that as a rule, improper advice of Advocate cannot be accepted as sufficient cause for non- appearance by the defendant. This proposition of law has no applicability to the instant case. Moreover, facts in that case were quite different. Learned counsel for the petitioner also contended that application filed by defendants no.1 and 2 is barred by limitation. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Mahabir Singh vs. Subhash and others reported as 2008 (1) R. C. R. (Civil) 32. The contention cannot be accepted. Respondents no.1 and 2 pleaded that they acquired knowledge of C. R. No. 4890 of 2009 14 the ex-parte decree when Bailiff visited the spot. The Bailiff visited the spot on 07.10.1998 and application by defendants no.1 and 2 for setting aside ex-parte decree was moved on 31.10.1998. So, the said application is within limitation. Learned counsel for the petitioner contended that respondent no.1, while appearing as AW-2, deposed that he acquired knowledge of the ex-parte decree from Gurcharan Singh, but Gurcharan Singh, who is attorney of respondent no.3, while appearing as AW-3, stated that he had no knowledge of the litigation till 22.11.1999. This apparent discrepancy does not help the petitioner. Respondents no.1 and 2 filed the application on 31.10.1998 and pleaded that they learnt of decree when Bailiff visited the spot and Bailiff had visited the spot on 07.10.1998, when defendants no.1 and 2 came to know of the decree. The Bailiff also later on visited the spot on 22.11.1999, when respondents no.3 and 4 came to know of the ex-parte decree. For the reasons recorded herein above, I find that impugned order of the trial court does not warrant interference in exercise of supervisory jurisdiction or power of superintendence under Article 227 of the Constitution of India because substantial justice has been done by the trial court by passing the impugned order. However, cost amount requires to be enhanced keeping in view all the circumstances of the case. The revision petition is accordingly dismissed except to the extent that respondents no.1 to 4 shall pay Rs.20,000/- as cost precedent instead of C. R. No. 4890 of 2009 15 Rs.8,500/- as cost as directed by the trial court. Nothing observed in this order shall have any bearing to depict that respondents no.3 and 4 herein are bona fide purchasers of the suit property. May 24, 2010 ( L. N. MITTAL ) monika JUDGE