C.R. No. 7039 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 7039 of 2009 (O&M) Date of Decision: 30.11.2009. Karam Singh ....Petitioner Versus Sat Pal Mehta ...Respondent CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Manuj Nagrath, Advocate for the petitioner. RAJESH BINDAL J. **** The challenge in the present petition is to the order passed by learned Court below whereby the appeal filed by petitioner-defendant against the order passed by the learned trial Court dismissing the application under Order 9 Rule 13 CPC for setting aside the ex-parte order and decree passed against him was dismissed. In the present case the respondent/plaintiff filed a civil suit on May 19, 1999 on the basis of a writing of the petitioner whereby he had taken loan of Rs. 21,000/-. After service of the petitioner, he was directed to be proceeded against exparte on June 15, 1999 on account of his failure to appear. Exparte judgment and decree was passed in favour of respondent/plaintiff on January 4, 2000. Application for setting aside the exparte judgment was filed on November 13, 2002 which was dismissed on the ground that the petitioner had not been able to prove the fact that the summons served on the petitioner/defendant did not bear his signatures. Even in appeal, the petitioner failed. Learned counsel for the petitioner submitted that the writing on the basis of which the suit filed by the respondent/plaintiff has been decreed could not be considered as a pronote on the basis of which decree could be passed. He further submitted that there is no compliance of Section 73 of Indian Evidence Act, as the signatures of the petitioner on the summons were not C.R. No. 7039 of 2009 (O&M) 2 compared with his normal signatures. The application for setting aside the judgment and decree was filed immediately after he came to know about the passing thereof during the execution proceedings. After hearing learned counsel for the petitioner, I do not find any merit in the submissions made. As far as challenge to the judgment and decree on merits is concerned, the issue could be raised by the petitioner/defendant in case the appeal is filed against the judgment and decree on merits. In the present proceedings the issue under consideration is the setting aside of judgment and decree passed in favour of plaintiff/respondent exparte. The challenge in the present petition is to the order passed by the Court below whereby the petitioner-defendant was directed to be proceeded exparte. It is not in dispute that the summon which contain the signature of petitioner/defendant for service of summons was also witnessed by chowkidar of the village. The petitioner though appearing in support of his application denied his signatures but he did not produce any handwriting expert to substantitate the stand that the signatures on the summons were not of the petitioner. Another fact on the basis of which the learned Court below had drawn adverse inference against the petitioner/defendant is that on the summons the petitioner had signed in Punjabi whereas in Court proceeding he signed all the documents in English which did not even enable the Court to prima-facie consider the fact as to whether the signatures on the summons were that of the petitioner/defendant or not. Considering the aforesaid fact in my opinion, no illegality has been committed by the Court below in dismissing the application filed by the petitioner/defendant for setting aside the exparte order and consequently the judgment and decree. Accordingly, the present petition is dismissed. Consequently the application for condonation of delay of 6 days is also dismissed. (RAJESH BINDAL) 30.11.2009 JUDGE Reema