Civil Revision No. 4964 of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4964 of 2004 (O&M) Date of Order: 12.08.2009 Chhaju Ram ....Petitioner Versus Thakurdwara Bhagwan Narain Ji Pandori Dham, through its Mahant Gobind Dass Ji. ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Arun Abrol, Advocate for the petitioner. Mr. R.S.Chauhan, Advocate for the respondent. RAJIVE BHALLA, J (Oral). The petitioner lays challenge to the order dated 08.08.2000, passed by the Civil Judge (Senior Division), Gurdaspur, dismissing his application for setting aside the ex-parte judgment and decree dated 23.08.1996 and the order dated 30.04.2004, passed by the Additional District Judge (Adhoc) Fast Track Court, Gurdaspur, dismissing his appeal. On 23.08.1996, an ex-parte decree for possession, of the suit land, by removing of 'Malba' within four months, was passed against the petitioner. The petitioner applied for a certified copy on 26.08.1996. The copy was prepared and delivered on 14.09.1996. The application for setting aside the ex-parte judgment and decree was filed on 24.9.1996. As the respondent opposed the prayer for setting aside the ex-parte judgment and decree, the trial court framed the following issues:- “1. Whether the applicant has sufficient cause as alleged?OPA 2. Whether the application is within time?OPA 3. Relief.” Civil Revision No. 4964 of 2004 (O&M) -2- After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the application. Aggrieved by the aforementioned judgment, the petitioner filed an appeal. Vide judgment and decree dated 30.04.2004, the Additional District Judge (Adhoc) Fast Tract Court, Gurdaspur, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the petitioner submits that the suit was decreed on 23.08.1996 and the application for setting aside the ex-parte decree was filed on 25.09.1996. If the period for preparation of the certified copy of the ex-parte decree, is excluded, the application was within time. It is further argued that the statement and report of the process server that the petitioner refused service, is factually and legally incorrect. The process server's report is illegal as after the petitioner's alleged refusal to accept service the process server did not follow the procedure prescribed by Order 5 Rule 17 of the Civil Procedure Code, namely, did not affix the summons on the petitioner's door. The deposition and report should, therefore, have been rejected. It is further argued that as the findings recorded by the courts below are inherently perverse and unjust, the revision petition be allowed. Counsel for the respondent, on the other hand, submits that the impugned orders do not suffer from any error of jurisdiction or of law. The petitioner was proceeded against ex-parte on 05.08.1994 after the process server reported that the petitioner had refused service. Thereafter the matter remained pending and the ex-parte decree was passed on 23.08.1996. The petitioner has failed to explain the delay between the ex- parte order and the decree. It is submitted that as the petitioner was aware of the pendency of the suit, the courts below rightly dismissed the application by placing reliance upon the process server report. I have heard counsel for the parties and perused the impugned Civil Revision No. 4964 of 2004 (O&M) -3- orders. The admitted facts are :- that an ex-parte decree was passed on 23.08.1996, the petitioner applied for a certified copy on 26.08.1996, the copy was prepared and delivered on 14.09.1996, the application for setting aside the judgment and decree was filed on 25.09.1996. It, therefore, belies comprehension as to how the courts below could have held that the application was barred by time. The courts below have relied upon the process server's report to hold that the petitioner was aware of the pendency of the suit. The process server's report contains a reference to one Amar Nath, in whose presence the petitioner is alleged to have refused the summons. It would be necessary to mention here that Amar Nath was not examined and before proceeding to pass the ex-parte order, the trial court did not follow the procedure prescribed by Order 5 Rule 19. In addition the process server did not follow the procedure prescribed by Order 5 Rule 17 i.e. did not affix summons on the outer door or some other conspicuous part of the house. On the basis of this defective report, the courts below appear to have drawn an assumption that the petitioner was aware of the pendency of the suit and was, therefore, disentitled to any relief. This finding in my considered opinion is unsustainable in view of what has been stated hereinabove. The findings recorded by the courts below are not only perverse but also contrary to the record, as there is no evidence to suggest that the petitioner was aware of the pendency of the proceedings In view of what has been stated hereinabove, the revision petition is allowed, the order dated 08.08.2000, passed by the Civil Judge (Senior Division), Gurdaspur and the order dated 30.4.2004, passed by the Additional District Judge (Adhoc) Fast Tack Court, Gurdaspur, are set aside, subject to payment of Rs.5000/- as costs. Civil Revision No. 4964 of 2004 (O&M) -4- Parties are directed to appear before the trial court on 24.09.2009. August 12, 2009 (RAJIVE BHALLA) nt JUDGE