C.R. No. 2389 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 2389 of 2005 Date of Decision: 12.10.2009 Bhartiya Janta Party, Punjab State, Shama Parshad Mukharji Samarak Bhawan, Dakshin Marg, Sector 37, Chandigarh, through its Office Secretary Sh. Raj Bhatia. ... Revision-Petitioner Versus Raj Rani wife of Tarseem Lal, resident of village Dhehpur, P.S. Adampur, Tehsil and District Jalandhar. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vivek Suri, Advocate, for the revision-petitioner. Respondent exparte. SHAM SUNDER, J. * * * * This revision-petition under Article 227 of the Constitution of India, is directed against the order dated 08.02.05, rendered by the Court of Additional District Judge, Jalandhar, vide which, it dismissed the application, for setting aside the ex-parte award dated 03.12.01. 2. An application, was filed by respondent No. 1/revision- petitioner, that it was not duly served, in the main petition. It was stated that it never refused the service of the summons. It was further stated C.R. No. 2389 of 2005 2 that, no effort, was made, to effect the service of any office holder of respondent No. 1. It was further stated that it came to know of the passing of exparte award, when the notice for execution, was served, upon it, i.e. in the month of July, 2003. Accordingly, a prayer, was made that, exparte award dated 03.12.01, be set aside. 3. In reply to the application, it was pleaded, that the same, was not maintainable. It was pleaded that the application, was barred by time. It was further stated that respondent No. 1/revision-petitioner, was duly served, through publication, in the newspaper, but it did not appear, before the Claims Tribunal, intentionally. It was further stated that respondent No. 1/revision-petitioner, had knowledge, about the pendency of the claim petition. It was further stated that, in case, the award, was set aside, the claim-petitioner/decree holder, will suffer an irreparable loss. 4. On the pleadings of the parties, the following issues, were framed:- (i) Whether there are sufficient grounds to set aside the exparte award dated 03.12.01? OPA (ii) Whether the application is maintainable? OPA (iii) Whether the application is time barred? OPR (iv) Whether this Tribunal has jurisdiction to decide the application? OPA (v) Relief. 5. After hearing the Counsel for the parties, and on going C.R. No. 2389 of 2005 3 through the record of the case, the trial Court, dismissed the application. 6. Feeling aggrieved, the instant revision-petition, has been filed by respondent No. 1/revision-petitioner. 7. I have heard the Counsel for the revision-petitioner, and have gone through the record of the case, carefully. 8. The Counsel for the revision-petitioner, submitted that, in the main claim petition, the correct address of respondent No. 1/revision-petitioner, was not given. He further submitted that the revision-petitioner, never refused to accept the service of summons. He further submitted that instead of giving the correct address of respondent No. 1/revision-petitioner, and serving it personally, it was ordered that, it be served through publication, in daily Naya Zamana. He further submitted that the newspaper daily Naya Zamana, is not in circulation, in Chandigarh. He further submitted that the revision- petitioner, was not at all, in the knowledge of the pendency of the claim petition. He further submitted that, when the revision-petitioner, came to know of the exparte award, in the month of July, 2003, it filed the application for setting aside the same. He further submitted that the absence of respondent No. 1/revision-petitioner, in the claim petition, was neither deliberate, nor intentional. He further submitted that the order of the Court below, being illegal, was liable to be set aside. 9. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the revision-petitioner, in my C.R. No. 2389 of 2005 4 considered opinion, the revision-petition, deserves to be accepted, for the reasons to be recorded, hereinafter. It is evident, from annexure P1, the exparte award, that respondent No. 1/revision-petitioner, was arrayed, as Bhartiya Janta Party, 48 MLA Flats, Sector 4, Chandigarh, through its President/Chairman, owner of the Contessa car, bearing No. CH-01-W-2430. Respondent No. 2, was arrayed, as driver of the aforesaid car. His name was not disclosed. Respondent No. 3, was Insurance Company, and the name of the same, was also not disclosed. Respondent No. 1/revision-petitioner, was not sued through its President by name. There is nothing, on the record, as to which person refused the service of the Registered cover. From the statement of Raj Bhatia, Office Secretary, Bhartiya Janta Party, who appeared, as AW1, it was proved, that respondent No. 1/revision-petitioner, never refused the service of the summons. Instead of giving the correct address of respondent No. 1/revision-petitioner, and getting it served through its President personally, a convenient method, was adopted, by the petitioner, in the main petition, to get it served, through publication. There is nothing, on the record, that the newspaper, in which, the notice, was published, was sent to the revision-petitioner, at its address. Under these circumstances, by no stretch of imagination, it could be said, that respondent No. 1/revision-petitioner, was duly served, but nobody, on its behalf appeared intentionally and deliberately. Service through substituted means, in the peculiar facts and circumstances of the case, could not be said to be a due service. It is settled principle of C.R. No. 2389 of 2005 5 law, that every lis, should be decided, on merits, rather than by default. When the hyper-technicalities and substantial justice, are pitted, against each other, than the latter will prevail over the former. The Court, is not required to be swayed by the hyper-technicalities. Even the Counsel for the revision-petitioner, submitted that the revision-petitioner, has already deposited a sum of Rs. 2,39,775/-, as per the order dated 09.05.05, passed by this Court. He also submitted that, in case, the award, was not set aside, the revision-petitioner, would not be able to claim the amount, from the Insurance Company, as the car, in question, was insured with it. The revision-petitioner, filed the application, for setting aside the exparte award, as soon as it came to know about the passing of the same, in the month of July, 2003. There is, thus, sufficient cause for setting aside the exparte award dated 03.12.01. The Court below, was not correct, in dismissing the application. The order impugned, suffers from illegality, material irregularity, and perversity, warranting the interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India, and is liable to be set aside. 10. For the reasons recorded above, the revision-petition, is accepted. The order impugned dated 03.12.01, is set aside, subject to payment of costs of Rs. 1,000/-. 12.10.2009 (SHAM SUNDER) Amodh JUDGE