Civil Revision No. 1808 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1808 of 2010 (O&M) Date of decision: 22.03.2010 Darshan Singh ....Petitioner Versus Sukhdev Kaur and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. V.K. Shukla, Advocate, for the petitioner. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the judgment dated 23.12.2009, passed by the learned Courts below, vide which, the application moved by the petitioner, under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside ex parte decree dated 8.2.2000, stands dismissed. The petitioner was defendant No.2, in a suit with his mother and brother being other defendants, in a suit, filed by the plaintiff/respondents, and was proceeded against ex parte, in view of the report of refusal. The suit was contested by his mother and brother. The suit was decreed on 8.2.2000. The petitioner moved application for setting aside ex parte decree, on the ground that the petitioner was not served in the suit, therefore, the ex parte decree be set aside. The application was contested by the plaintiff/respondents, except respondents No.1 and 4. Civil Revision No. 1808 of 2010 (O&M) -2- The learned trial Court, on appreciation of evidence, held that there was the evidence by the process server proving the refusal by the petitioner. The petitioner chose not to appear in the witness box and his attorney only appeared, to deny the factum of service, as he was in foreign country. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact, that the service on the petitioner was proved by the process server, who appeared in the witness box to prove his report. The learned Courts below also held, that the defendant/petitioner did not appear in the witness box to rebut the evidence, led by the plaintiff/respondents, therefore, no sufficient cause was shown for setting aside the ex parte decree. Mr. V.K. Shukla, learned counsel, appearing on behalf of the petitioner, challenged the judgment, passed by the learned Courts below, primarily on the ground, that the learned Courts below have mis-read the evidence of process server, in coming to the conclusion, that there was refusal by the petitioner. The learned counsel for the petitioner contended, that no prejudice was likely to be caused to the decree-holder, if the decree was set aside as plaintiffs could be compensated with costs, for the inconvenience. It is also the contention of the learned counsel for the petitioner, that the service was not effected in terms of Order 5 of the Code of Civil Procedure, as service by registered post acknowledgment due was not served, nor any publication was ordered. Civil Revision No. 1808 of 2010 (O&M) -3- The learned counsel for the petitioner also contends, that service on the petitioner was not valid, as it was not proved that the summons also had a copy of plaint attached. On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. The positive evidence was led by the plaintiff/respondents, showing the refusal by the petitioner. The evidence remained unrebutted, as petitioner did not appear in the witness box. It is well settled law, that attorney cannot depose regarding the matter, which is within the personal knowledge of a party. The denial by the attorney was of no help to the petitioner, as it was incumbent upon petitioner to appear and deny having refused the notice, so as to discharge the onus of proof of non-service. The contention of the learned counsel for the petitioner, that no prejudice was likely to be caused to the decree-holder, if the decree was set aside, is an argument to be noticed to be rejected. It is not understood, as to how a decree-holder, is not to be prejudiced if the decree passed in his favour is set aside. The costs cannot be a substitute for decree, as contended. The contention of the learned counsel for the petitioner, that no service by registered post or publication was ordered, is also mis- conceived. When there was proof of refusal of service, the petitioner was deemed to have been served, and no further mode of service was required to be effected. Finally, the contention of the learned counsel for the petitioner that the copy of the petition was not supplied, is again mis-conceived, as Civil Revision No. 1808 of 2010 (O&M) -4- firstly he has chosen not to appear in the witness box. Secondly, once he has refused to accept the notice, there was no possibility of handing over of copy of the petition. No merit. Dismissed. (Vinod K. Sharma) Judge March 22, 2010 R.S.