a 79 Civil Revision Noa6473 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARII Civil Revision No6473 of 2006 Date of decision 29AOl 0 Krishan Lal 0 C Petionerlcfcndan I t5 versus I Z Smtrishna Rao and others I 08 Prescntl Mre 1eKeMchta Scnior Advocatc with Mrs RanjcetMchta Advocatc and Mr MSKholi Advocate for the petitioner 7 Z Mr Lokesh Sinhal Advocate lr the rcspondent R No 7249 of 2008 Kishan Lal Pctitioner versus SmtKrishna Rao and othcrs Rcspondent Present M r LICMehta Senior Advocate with Mrs RanjectMchta Advocate and . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document I7 80 t Civil Revision No6473 of 2006 2 P1 Mre MSKholi Advocatc for the petitionere Mre Lokesh Sinhal Advocate for the rcspondente CORAM 2 HONBLE MRJUSTICE KCPURI KCPURL J 1 By this common order 1 intend to disposeof Civil Revision 0 C Noe7249of 2008 titlcd as Krishan Lai versus Smt Krishna Rao etc I C5 and CR No 6473 of 2006 titled as Krishan Lal versus Smte I Krishna Rao etc as both thcse revision pctitionsarise out of the Z same judgmentand dccreee Civil Revision No473 of 2006 r I This is a revision petitionagainstthe ordcr datcd 2981005 08 ao passedby Shri RajeshSharma Civil JudgeJunior Division Faridabad 7 and judgmentdated 2182006 passedby Shri AKRaghava Additional Z District Judgc II Faridabad vide which the appealprefcrrcdagainst the order datcd 291005 was dismissed Brieflystatcd the facts of the prcscnt casc are that Kishan Lal filed a suit againstdcfcndants and that suit was ultimatelydecreed byShri Raj Kumar Civil Judge 3 Class l Faridabad by passingex partedecree dated 2981982 lt is allcgedbythe defendant that he was notin the knowledgc of the judgmentIt was only on 163996 when one of the offlcials of thc Court camc to thc property of thc defendant to vacate the same otherwise hc would be cjectedwith thc policchclp The defendant was surprisedIater and on inquirycame to know that . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 81 r Civil Revision No6473 of 2006 3 av no proper servicc was cfTected upon him nor any publicationwas effected and hc had IlO knowlcdgc about thejudgment and decree The plaintiffhad managcdthat scrvicc should not be cffected upon the defendant of that case and that is why he obtaincd thc cx3arte decrce 1r and service was not cffected upon defcndant or his wifc Janki Devi and 0 that therc were thumb impression of Janki Dcvi on which ITI has becn C I mcntioncd instcad of RTl It also bcars the th umb imprcssionon C5 I summons in which RTI is mentioned The report datcd 651982 carries no weight Thc land was allottcd to thc defendant by Wakf Board and Z hc continued in the of thc suit land SIOCC 1962 The exlarte r1 order would Iiable to bc set aside So the applicationunder Order 9 Rule 13 CPC for scttingasidc exoarte decree dated 2931982 was Olede C45 Thc said applicationwas contcsted by the plaintiff and it IS Wo pleadcdthat Kishan Lal refused to aceeptthc servicc on summons which was duly served upon him and the proccss afOxed at his house and he was fully awarc of thc proceedingsof this case Thc decrcc holdcr filed a suit for declaration as well aS injunctionNo 30f31994 and it was mcntioncd about thc presentsuit in thc said casc and that case was also dccrccd in favour of BhagatSinsh Kishan Lal had got fuIl knowledge of the proccedingsof the said case Kishan Lal is not the owner of thc suit property Thc summons of the eecution proceedings were also served upon Kishan Lal but hc rcfused to receivc the summons BhagatSinghalso Oled the suit carlicr rcgardingthc injunctionwhich was also procecdedagainstclarte and was decided . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 82 1 1 Civil Revision No6473 of 2006 4 4R ln favourof the decree h81derand Kishan Lal was also served He also in thc said case and Oled thc replyeThe said decree dated 651002is not Iiable to be sct aside bccause the defcndants were fuly aware of the of the said case The Iand was nevcr allotted 1 C to the defendant by thc Punjab Wakf Board Therefore the 0 defendants havcpraycdfor dismissal of the presentapplication 0 I Following issucs were framcd C 1eWhcthcrthere are sufficicnt groundfor settingaside the I and decree dated 2981982 in Civil Suit No 420182 2 OPA Z 2 Relief tr FoIlowing additional issuewas framcd I 1e Whether the prescntapplicationIS barred by law of a5 Iimitation 2OPR 7 The partieshave Ied their respcctiveevidence on the Z aforesaid issuesa Qm CeReNo 7249 of 2008 PctitioneKrishan Lai has flled this revision pctition against the order dated 8A2008 passedby Shri SKGarg Civil Judge Senior Divisior Faridabad vidc which petitioncrpraycdfor initiation of contemptof Court procecdingsagainstthe decrec holder Gian ChandSIISHO Police Station old Faridabd and bailiff of thc Court and for restoration of posscssion of thc prcmisesin disputcto thc judgment The facts of thc case are that exccution petitionwas filed by thc decrec holder for executingthe dccree dated 290901982 The decree . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 83 r ivil Revision No6473 of 2006 5 holder stated that the judgmentdcbtor was rcstraincd from intcrfering Ill his posscssion ovcr thc suit property and from raisingany construction over the suit propcrtyvidc decrec dated 29091 982 No appealwas filed by thc judgmentdebtor againstthc decrcc in question r The judgmentdebtor illegally him from the suit property 0 and also raised construction over the suit propertyafter the passingof 0 the dccree and thereforc a direction beissued to the dccreclolderto Co remove his construction from the suit propcrty and to hand ovcr the of the suit propertyto thc decree holder Z The copy of thc samc application was givento decree holder Shri BhagatSinghat the site in disputeand at that timc construction work was in progrcss Thc applicantasked the SHO and the decree 08 holder to stopthc construction on the premiscs in disputeand the SHO 7 assured that he would getit stoppedafter havinginstructions from the Z 0a higherauthorities Thereafter SI10 skippedof from the site in disputee Thcreaftcr more than 15 persons armed Ivith sticks guns etce assembled there and construction work was cxpcdited He showed the copy ofstayordcr dated 18031996 and asked the dccrcc holdcr to obey the said order Thc dccrec holdertook up thc copy of ordcr from the hands of JD and torn into piecesand said with chaIlenging tonc that he did not care for any such stay order Thc judgmentdebtor immediatelyran to the policestation Old Faridabad and asked the SHO Shri Gian Chand to get the stay order compliedwith and to stop the construction at the site In dispute . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 84 Civil Revision No6473 of 2006 6 1 but he refused to provideany hclpin thc matter statingthat he had 110 instructions in that regardThereafter the judgmentdebtor took the photographer and asked him to take certain snaps of the construction work beingcarried out at the prcmisesin dispute The photographer m r was pushedaside by one of the muscle man of thc decrce holder and he 0 was not allowed to takc photograph C Thc dccree holdcr in collusion with SHO Shri Gian Chand I 0 and bailiffand othcr policcofficials violatcd thc ordcr ofthc Court I Thc dccrcc in questionwas an cx parte decree for Z permanentinjunctionin which the warrant of posscssioncould not bc issued and the decree holder obtained thc warrant of posscssionby I misleadingthc Court 08 oo The decrce holder filed rcplyto the applicationand opposed 7 the application on thc groundthat the warrant of posscssionwas issued Z Ill his favour by the Court and the possession was dcIivcred to him by 0 the bailiff on 18031996 at about 1200 noon and the judgmcntdebtor and his son Dcv Raj affixed thcir thumb imprcssionand signatures on the warrant of posscssionPossession was dclivered to him bcforc passingof the said ordcr of thc Court Ile was informed about the stay order of thc Court on 18031996 at about 800 PM and after that no construction was allowed to be raised at thc site in disputc Followingissucs wcrc framcd on 13062001 1e Whether the respondcnthad committed brcach of the order passedby the Court 20PP . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 1 85 f Civil Rcvision No473 of 2006 7 2e Whcthcr the presentapplicationis not maintainable Ill thc prcscntform 90PR 3e Relicf dcbtor appcaredin the witness box as m AW4 He also examincd AW2 IIari Singh AH3 Aas Mohammad 0 AW4 Surender Kumar Jain AH SheDev Dutt AH6 Sh SKJain 0 AW4 ShRaj Kumar On the othcr hand the deeree holdcr has I C examined DHHl Shri Tribhuwan Singhbailiff DIlH2 Gianender I Kumar DlIW3 Sh Gian Chand DHW4 Sh Dalip singh DHW5 Z ShRajKumar DHWw6 Shri Mahender Singh 4 C After hcaringthc Iearned counsel for the parties the trial I Court dismissed both thc 08 01 Feeling dissatisfied with thc a bovc said ordcrs the 7 has fiIed the instant revision pctition Z I havc heard Icarned counscl for thc partiesand have minutelygonc throughthe rccords of thc casc wilh their hclp The main controversyItl the prescnl case is whether the ex partedecree dated 23A1992 is liablc to be set aside In this rcgardalso there are two aspectofthe case al whether defendant in the main suit which culminating into the decree dated 23A1982 was dulyserved and bl whether the applicationmoved by the presentpetitioner was within limitaon Learned Civil Judgc 6JuniorDivisionl Faridabad in its . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 86 Civil Revision No6473 of 2006 8 4 order dated 292005 decided issue Noel lll favour of the present petitioner that there wasno due service on the application However issue regarding limitation was decided againstthe present petitioner Defendant Kishan Lal prcferredappealagainstthe order dated 29082005 vide his applicationfor settingaside exparte decree dated 0 23A1982 was declined The learned Additional District Judgein MCA C3 I N033 of3082005 decided on 2182006 returned the Ondingofboth the C5 1SSues againstthe petitionerand held that defendant was duIyserved I and the application is not within limitation Z After hearingboth the sides I am of the considered Vlew m that findingof learned Additional District Judgevide judgmentdated I 2L81006 that petitionerhas been dulyserved and that application 1S 08 ClO not within limitation these findingsdo not call for any interference 7 The respondent has producedOll the file summons copy of which 1S Z OWle These summons were issued againstKishan Lal and Shama m defendant According to the report on the summons Kishan Lal was served throughJanki Devi his wife whereas Shama son of Sukhi was served in person The counsel for the revisionist has 8trther submitted that since LTI 1S rnentioned in respectof thumb impressionof Janki Devi wife ofpetitionerand RTI has been mentioned in respectofthumb imPression Of Shama and as such this is not a valid service The said argumentcannot prevailupon Mere mentioningof LTI or RTI instead of RTI and LTI respectively do not make the summons invalid The plaintifYhas dischargedhis onus by summoningthe r9 . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 87 Civil Revision NoS473 of 2006 9 process server regarding SCrVlCC of Kishan Lal throughhis wife Janki and Sharma The petitionercould have provedthis fact byexamining any DocumentExpertthat thumb ofJanki Devi and Shama do not bear on the summons Therefore the service efTected is a valid 10 far as the presentpetitioneris concerned It does not lie in service so 0 his mouth that there was no service on the petitioner In authority 0 I Aiita Sharma VSe Rakesh Kumar Sharma 1998 21 RCR 565 Single 0 I Benchjudgmentof this Court it has been held that where there is of the notice on the dcfendant and he still ignoresthe said service Z litigation it would be whollyunfair for the person that he has not been C formally servede I The other limb of argumentraised by the learned counsel 08 for the petitioneris that the summons were not bYthe 7 ofplaintand as such this is not a valid service But this Court in Z copy Om authorityDev Karan VS Bhawan Dass 1991 1ll PLR 206 held that where the defendant was personallyserved and copy of plaintwas not served it beinga mere irregularitythe exeparte dccree cannot be set aside So far as the ftndingof both the Courts below that the under Order 9 Rule 13 CPC is not within limitation on the facts of the present case 1S concerned thal beinga findingof fact returned by both the Courts below cannot be interfered The application for settingaside exarte proceedings was preferred on 2131996 BhagatSinghfiled a suit for declaration with . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 88 6 Civii Revision No6473 of 2006 10 relief of injunctionvide case No of31994 The decreelolder had mentioned in para No5 6fthat plaintthat his suit NoA30 0f1982 dated 23A1982 has becn decreed exmparteKishan Laoetitioner was duly served in the said case and 8led replyOll 111994 So even if adverse r case 1Staken in that case on 11A1994 the presentpetitionermust have 0 acquiredthe knowledge of the dccrce dated 23e41982 However the C I presentpetitionhas been flled Oll 2131996 ic about two years after 0 I filing the written statemcnt in the said case So in these circumstances both the Courts bclow have rightly held that Z application is not within limitation The Honble ApexCourt in authorityMahabir vs Subhash I a5 and othen200811 SCC 358 held that period of limitation to be reckoned from the date of knowledge of passingthe exarte decree if I7 the same is barred by limitation In these circumstances in view of Qm Section 30fthe Limitation Act no Court shall havejurisdiction to any suit or applicationif the same has been flled after expiryof periodof limitation AuthorityMls Markland PAd and others VS State of GujaratAIR 1989 Guiaral j4 relied upon by the counsel for the petitionerthat delayin Olingthe applicationcan be condoned does not helpthe case ofthe petitionerScction 50fthc limitation Act applies to the appeal Moreover it is not the casc ofthe petitionerthat delayin fllingthe petitionbc condoned So the petitionercannot take benefit ofthe said authority . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 89 A Civil Revision NoS473 of 2006 11 AuthorityI2ICShanna 8c Ors vs Ashok Naar Wele Assodation and Co 2001 1 Civil Coun Cases 570 a9elhi High Counl lS to the facts of the presentcase as in the said case it was provedthat the plaintiffhas playeda fraud in obtainingexlarte r decree No such allegation is provedon the facts ofthe presentcasee 0 In authority Smt Asha Y vs SmLKanta Gupta 2002 C I 11 Cnlil Court Cases ptiee 345 is as in that case this C5 I Court comes to the conclusion that oppositepartyhas no sumcient time to appear and to answer the claim ofthe plainti Z AuthorityAiit Singh vs Santokh Singh2002 81 Civil Coun Cases657Puniab cHarvanal relates to the refusal ofthe summons I So in view of the above discussion both the Courts beIow 08 QO have rightlydismissed the applicationunder Order 9 Rule 13 CPC 7 preferred bythe petitioner Z m Now revertingto the applicationfor initiatingcontempt is concerned the order of the trial Court in this regard also does not sufYer from any infirmity It is the specificfindingof Court below that possession was delivered to the decreewholderby the BailifYon 1831996 at 12110noon and Dev Raj SOll ofjudgment debtor fixed thumb impressionand signatures on the warrant of possession The order dated 1831996 was conveyedat 800pm Since the possession ofsuit property has alreadybeen delivered in compliance to warrant ofpossession so the questionofcommitting breach ofthe order ofthe Court does not lie In view of the above discussion both the petitionsare without any substance and the same stand dismisscd . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 90 Civil Revision No6473 of 2006 12 n A copy of this judgmcntbc sent to the trial Court for strict compliancc J JUDGE m 2010 1 SV 0 C rJ4 I c I el Cle C5 0 I 0 1 Z r 94 I 08 oo p mm C Z 1 1 tl 9 . Anita 2012.08.17 14: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document