Civil Revision No.1628 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1628 of 2011(O&M) Date of Decision: March 9, 2011 Sanjeev Kumar Aggarwal .....Petitioner v. Atul Kumar and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Ashish Aggarwal, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.6574-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.1628 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 16.2.2011, Annexure P7, passed by learned Civil Judge, Junior Division, Yamuna Nagar at Jagadhri, vide which application, Annexure P5, filed by petitioner for setting aside ex parte proceedings under Order IX Rule 7 of the Code of Civil Procedure was dismissed. I have heard learned counsel for petitioner-defendant no.8 and have gone through the whole record carefully including the impugned order passed by learned trial Court. Brief facts relevant for the decision of present revision petition are that a suit for permanent injunction was filed by respondent no.1- plaintiff initially against respondents-defendants no.1 to 7 for a decree for permanent injunction restraining them from alienating any specific portion of khasra number out of land measuring 74 kanals 3 marlas, fully described in the heading of the plaint and from changing the nature of the suit land by carving out the plots in the same without getting the same partitioned by Civil Revision No.1628 of 2011(O&M) -2- metes and bounds and for declaration to the effect that lease deed no.3291 dated 12.11.2002 and mutation No.7801 dated 21.12.2002 on the basis of lease deed, dated 12.11.2002, and the release deed/relinquish deed No.3367 dated 18.11.2002 and mutation No.7803 dated 21.12.2002 on the basis of the release deed/relinquish deed, dated 18.11.2002, all on behalf of the plaintiff and registered sale deed No.4381 dated 30.1.2003 in respect of the land measuring 5 kanals 9 marlas, out of the suit land executed and got registered by defendants no.1 and 2 in favour of defendants no.3 to 5 and registered sale deed No.4379 dated 30.1.2003 in respect of the land measuring 11 marlas, executed and got registered by defendant no.2 in favour of defendants no.6 and 7 are wrong, illegal, null and void and not binding on the rights of the plaintiff. Lateron, on the application moved by plaintiff, present petitioner-defendant no.8 was also impleaded as a party. Notice was issued to present petitioner-defendant no.8. Summons were issued by ordinary process as well as by registered post. However, registered cover as well as notice received unserved with the report that petitioner-defendant no.8 was avoiding service and hence learned trial Court ordered that service be effected upon petitioner-defendant no.8 by way of munadi. Munadi (proclamation by beat of drum) was duly effected and, however, as petitioner -defendant no.8 did not appear, he was proceeded ex parte vide order dated 30.5.2007. The present application for setting aside ex parte order and subsequent ex parte proceedings was filed by petitioner-defendant no.8 on 20.11.2010 on the plea that he came to know about the pendency of the suit against him from plaintiff himself on 19.11.2010. The application was contested by respondent-plaintiff. The same was dismissed by learned trial Court by observing as under:- “9. From the aforementioned facts, it is clear that applicant had knowledge about the pendency of the suit before 30.5.2007 and was rightly proceeded against ex parte as he did not appear before the Court intentionally and the present application has been moved after a gap of three and half years just in order to delay the present case. Hon'ble Rajasthan High Court in Swami Bharat Satyrathi @ Bharat Singh v. Napen and others, 1999(3) Civil Court Cases 634 Civil Revision No.1628 of 2011(O&M) -3- has held that `where the defendant had knowledge of the date of hearing and had sufficient time to appear mere irregularities in service of summons is not a valid and sufficient ground for setting aside ex parte order. 10. Learned counsel for applicant has relied upon Sushil Kumar Sabharwal v. Gurpreet Singh and others, 2002(2) Civil Court Cases 568 (SC) and Kailash Chand Jain and others v. Chhaju Ram Jain and others, 2003(3) CCC 414 (P&H). However, the cited authorities are of no help to the applicant and are not applicable to the facts of the present case because in the present case, the notice and munadi was duly attested as per procedure. There is nothing to show that the applicant had no knowledge about the pendency of the present suit and the present application has been moved after a delay of more than three years.” It has been contended by learned counsel for petitioner- defendant no.8 that he has acted as arbitrator for deciding the dispute between three brothers being brother-in-law of all brothers and as allegations are made that he did not act in a fair manner, he be given an opportunity to appear before learned trial Court and file written statement. As per own case of petitioner-defendant no.8, he is having no interest in property in dispute. Dispute is regarding the property left by Rajeshwar Parshad (deceased). Dispute is between all the three sons of Rajeshwar Parshad (deceased). Other respondents are subsequent vendees. Learned trial Court has given sufficient reasons for declining the request of petitioner-defendant no.8 for setting aside ex parte proceedings against him. It is not the case of petitioner-defendant no.8 that summons were not sent on the correct address. Summons were sent on the correct address. Summons were also sent by registered post. However, there is report of postal authorities as well that despite visiting residence of petitioner -defendant no.8 six times, he avoided receiving the registered cover containing summons. Hence, in view of these facts, learned trial Court was having no other alternative but to order for effecting substituted service upon petitioner-defendant no.8, which was duly effected. Copy of notice and plaint was also affixed on the residential house of petitioner-defendant Civil Revision No.1628 of 2011(O&M) -4- no.8. It has also been rightly observed that plea of petitioner-defendant no.8 cannot be believed that he came to know about his impleadment as a party in this case only on 19.11.2010, i.e., after a period of about more than three years. He is closely related to both the parties. As per his own version, he got the matter resolved between all the sons of Rajeshwar Parshad (deceased). Hence, learned trial Court has rightly observed that he was in the knowledge of pendency of suit since the very beginning and the application was filed just to delay the decision of present suit, which is pending since the year 2007. In view of the aforementioned discussion, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 9.3.2011 (Ram Chand Gupta) meenu Judge