Civil Revision No.5023 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5023 of 2011 Date of Decision:19.08.2011 Manmohan Soni ......Petitioner Versus Banwari Lal .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Ashok Kumar Khunger, Advocate, for the petitioner. **** M EHINDER S INGH S ULLAR , J.(oral) The epitome of the facts, relevant for disposal of the present revision petition and emitting from the record is, that Manmohan Soni son of Bhagwan Dass Soni-petitioner-plaintiff(for brevity “the plaintiff”) filed the suit against Banwari Lal-respondent-defendant(for short “the defendant”) for a decree of possession by way of specific performance of an agreement to sell dated 08.12.2007. 2. As, initially the defendant did not appear to contest the suit, therefore, ex-parte proceedings were ordered against him. The suit of the plaintiff was ultimately decreed by the trial Court, by means of ex-parte judgment and decree dated 09.03.2010. 3. As soon as, the defendant came to know, he moved an application for setting aside the ex-parte judgment and decree dated 09.03.2010, invoking the provisions of Order 9 Rule 13 CPC, inter alia, pleading that neither he was duly served, nor the pendency of the suit was in his knowledge. 4. The plaintiff refuted the claim of the defendant, filed the reply, in which it was claimed that the defendant was duly served. Moreover, the pendency Civil Revision No.5023 of 2011 2 of the suit was in his knowledge. Thus, the plaintiff prayed for dismissal of the application. 5. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the application on 26.04.2011 and the parties to the lis produced their respective evidence:- “(i) Whether the ex parte judgment & decree dated 9.3.2010 passed by the Court of Mrs.Girish, PCS, the then Ld.Civil Judge (JD), Abohar, in case titled as Manmohan Soni Vs. Banwari Lal is to be set aside?OPA (ii) Relief.” 6. The trial Court accepted the application, set aside the ex-parte judgment and decree dated 09.03.2010 and the defendant was allowed to contest the suit in question, by virtue of impugned order dated 25.07.2011. 7. Aggrieved by the impugned decision of the trial Court, the plaintiff preferred the present revision petition, under Article 227 of the Constitution of India. 8. After hearing the learned counsel for the petitioner, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant revision petition in this context. 9. Ex facie, the argument of the learned counsel that since, the defendant was duly served in the main suit and his application was accepted on technical grounds, so, the trial Court committed a legal mistake in this relevant connection, is neither tenable nor the observations of this Court in case Gurpartap Singh Versus Rajinder Kumar and another, 2007(3) RCR(Civil) 619, are at all applicable to the facts of the present case, wherein, the petitioner(therein) himself has filed a suit for injunction, restraining the respondent-landlord, from interfering in the peaceful possession except in due course of law. In that suit, written statement was filed, in which it was specifically mentioned that a petition under Section 13 of the Punjab Urban Rent Restriction Civil Revision No.5023 of 2011 3 Act, 1949 has been moved against the petitioner and the next date of hearing was also mentioned therein. So, on the peculiar facts and in the special circumstances of that case, it was observed that the defendant had the knowledge of the proceedings and did not intentionally appear on the date of hearing despite notice and sufficient time to appear and to answer the plaint, the court will not set aside the ex-parte decree merely on the ground of an irregularity in the service of summons. 10. Hardly, there is any dispute with regard to the aforesaid observations, but the same would not come to the rescue of the petitioner in the present controversy, as there is no evidence, much less cogent, on record to prove that the defendant had the knowledge of the pendency of the suit. 11. As is evident from the record that, the trial Court allowed both the parties, to produce evidence, in order to substantiate their pleaded stands. Having scanned the evidence in the right perspective, the trial Court has recorded a finding of fact that the defendant was not duly served in the main suit and there was non- compliance of Order 5 Rule 17 CPC. Therefore, the contrary arguments of the learned counsel for the petitioner “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 12. No other meaningful argument has been raised by the learned counsel for the petitioner-plaintiff, to assail the findings of the trial Court. All the remaining contentions, relatable to the appreciation of evidence, now sought to be urged on his behalf, have already been duly considered and dealt with by the trial Court, in this relevant behalf. 13. Moreover, the trial Court has rightly accepted the plea of the defendant, by way of impugned order dated 25.07.2011, which in substance is, as under:- “I have heard the rival submissions and perused the record carefully. The applicant Banwari Lal has filed the present application seeking the setting aside ex parte judgment and decree dated 9.3.2010 passed by Mrs.Girish, PCS, the then Ld.Civil Judge(Jr.Div.), Abohar in suit titled “Manmohan Civil Revision No.5023 of 2011 4 Soni Vs. Banwari Lal”. The applicant Banwari Lal stepped into the witness box as AW-1, AW-2 Machhi Ram and AW-3 Rinku have been examined by the applicant to corroborate his plea. The cross examination of the AW-3 Rinku no doubt shows that he has stated that applicant Banwari Lao had refused to accept the summons. It appears that the witness has been won over by the respondent. No doubt, the respondent has examined RW-1 Raj Kumar Process Server and RW-2 Babu Ram Process Server who proved report of refusal by the applicant Banwari Lal upon the summons as well as proved the report of Munadi, yet, in my view the service of Banwari Lal, applicant(the defendant in suit) is not proper. The perusal of the suit file shows that the summons through ordinary process which were issued by Court for service upon applicant Banwari Lal have been received back with the report of refusal. As per provision of Order 5 Rule 12 CPC, the service upon a defendant shall be made in person. As per provision of Order 5 Rule 17 CPC, which lays down the procedure when defendant refuses to accept the summons or cannot be found is where the defendant refused to sign the acknowledgment, the serving officer shall affix a copy of the summon on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business. The serving official i.e., the Process Server is required to mention on the report regarding service that he knew the defendant personally or in case he does not know the defendant personally, the defendant was identified by some person. In the present case, none of the summons which were served upon the defendant by Process Server RW-1 Raj Kumar and RW-2 Babu Ram bear the report of the Process Server that they knew the defendant Banwari Lal personally, nor there is any report regarding any person having identified the defendant Banwari Lal to the Process Server. Since this material requirement is missing, therefore, this Court is of the opinion that service upon the defendant Banwari Lal is not proper. Furthermore, no order was made by the Court to serve the summons upon the defendant through registered post. Keeping in view the above discussion where it is held that service upon the defendant Banwari Lal is not proper and further keeping in view the principle that every opportunity should be given to a party to contest the case on merits and technicality of law should not come in way of advancement of justice, this Court is of the view that ex parte judgment and decree dated 9.3.2010 is liable to be dismissed and is accordingly set aside. Issue No.1 is accordingly decided in favour of the applicant and against the respondent. As a result of my findings returned on above issue, the application filed by the applicant Banwari Lal under Order 9 Rule 13 CPC is allowed and ex parte judgment and decree dated 09.03.2010 is set aside.” 14. Meaning thereby, the trial Court has recorded the valid grounds in the impugned order in this respect. Such order, containing the valid reasons, cannot legally be set aside, in exercise of limited revisional jurisdiction of this Court, as contemplated under Article 227 of the Constitution of India, unless the same is perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned order deserves to be and is hereby maintained in the obtaining Civil Revision No.5023 of 2011 5 circumstances of the case. 15. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition is hereby dismissed as such. August 19, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Civil Revision No.5023 of 2011 6 C.M.No.20005-CII of 2011 in Civil Revision No.5023 of 2011 Present: Mr.Ashok Kumar Khunger, Advocate, for the petitioner. **** Application is allowed as prayed for. August 19, 2011 (MEHINDER SINGH SULLAR) seema JUDGE