CR No.363 of 2009 - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.363 of 2009 Date of Decision: 22.09.2009 **** Puran and another . . . . Petitioners VS. Gram Panchayat etc. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** Present: Mr. Randhir Singh, Advocate for the petitioners Mr. Shiv Kumar, Advocate for the respondents **** SURYA KANT J.(ORAL) This Revision Petition is directed against the order dated 11.09.2007 passed by the Civil Judge (Junior Division), Palwal, whereby an application under Order 9 Rule 13 CPC moved by the respondent- Gram Panchayat, has been accepted and the ex parte judgement and decree dated 30.01.2003 have been set aside and the suit has been restored to its original number and position. The petitioners are also aggrieved at the judgement dated 2nd May, 2008 passed by the learned Additional District Judge, Faridabad, upholding the above-mentioned order of the trial court. The petitioners filed a suit for declaration claiming ownership over the suit land situated within the revenue estate of village Sujwari, Tehsil Palwal, District Faridabad. The petitioners’ claim was that their predecessors and they themselves are in continuous possession of the suit land as Bhondedar and their possessory rights have matured into ownership rights. The Gram Panchayat being the CR No.363 of 2009 - 2 - owner of the suit land as per the revenue record was impleaded as defendant No.2. It appears that no summons were served upon the then Sarpanch of the Gram Panchayat, yet a report regarding service was submitted and based upon that the Gram Panchayat was proceeded ex parte. This led to passing of an ex parte judgement and decree dated 30th January, 2002. The Gram Panchayat thereafter moved an application under Order 9 Rule 13 CPC to set aside the ex parte judgement and decree, inter alia, claiming that no service was ever effected on the then Sarpanch of the Gram Panchayat. The Civil Court framed the following issues:- “1. Whether the summon was not duly served on the applicant/defendant No.2 in the main civil suit? OPA 2. Whether the applicant/defendant No.2 was prevented by any sufficient cause from appearing when the suit was called on for hearing?OPA 3. Relief” On a consideration of the evidence led by the parties, the learned Civil Court concluded as follows:- ”I have heard the ld. Counsel for the parties and have examined the oral as well as documentary evidence placed on the file. The witnesses examined by the applicant, in my view, have remained consistent to this extent that no service was effected on the applicant/defendant. On the munadi report, signatures of AW1 Topan Ram and Pappan Chowkidar were appearing; however AW1 Topan Ram has refused to identify his signatures on the munadi report. Non service of the summons through munadi is further confirmed from the testimonies of RW1 Amar Singh and RW2 Amar CR No.363 of 2009 - 3 - Chand. Both witnesses have made contradictions. As far as munadi is concerned, RW1 Amar Singh has deposed that village Chowkidar Pappan had bit the Pipa, whereas RW2 Amar Chand Process Server has deposed that Munadi was effected by beating of drum. Even the timing mentioned by both the witnesses shows contradiction which disbelieve the story of the respondents/plaintiffs. The reference made by the ld. Counsel for the respondents/plaintiffs. That AW4 Dharambir has stated that service was effected through Sarpanch, is also considered by me and I am of the view that except this witness, all other witnesses have clearly deposed that no service of summons either personally or through munadi was effected. Merely stating by one witness that service was effected on the Sarpanch, is not sufficient. Moreover, the Hon’ble Apex Court in case law Sushil Kumar Sabharwal vs. Gurpreet Singh and ors. 2002(2) CCC 5668 (SC) has held that the testimony of defendant/applicant is having more weight that the testimony of Process Server. As such, I am of the considered view that the applicant has duly proved that no service of summon was effected upon the applicant/Gram Panchayat either personally or through Munadi. The entire story taken by the respondents/plaintiffs is discarded on the ground that the witnesses examined by the respondents/plaintiffs have made serious contradictions which cannot be accepted. In the light of the above reproduced categoric finding of fact, the Civil Court vide its impugned order dated 11.09.2007 allowed the application and set aside the ex parte judgement and decree dated 30.01.2003. The petitioners preferred an appeal which has also been dismissed by the learned Additional District Judge Faridabad vide judgement dated 02.05.2008. I have heard learned counsel for the parties at some length and perused the orders impugned herein. It is urged on behalf of the petitioners that the application under Order 9 Rule 13 CPC was not moved within the prescribed period CR No.363 of 2009 - 4 - of limitation and therefore could not be entertained. Reference to a recent decision of the Hon’ble Supreme Court in State of West Bengal and Others vs. Somdeb Bandyopadhayay and Others (2009) 2 SCC 694 is also made to contend that the trial Court erroneously granted ad interim injunction in favour of the Gram Panchayat even without deciding the application for condonation of delay. In my considered view, the Revision Petition is devoid of any merit. The Civil Court has returned a categorical finding of fact that no service was ever effected upon the then Sarpanch of the Gram Panchayat. It has also been found that the Gram Panchayat came to know about the impugned judgement and decree only on 23rd April, 2003 and the application under Order 9 Rule 13 CPC was moved on 8th May, 2003, well within limitation from the date of knowledge. In these circumstances, no case to interfere with the concurrent finding of fact returned by the Courts below, by this Court in exercise of its revisional jurisdiction is made out. Dismissed. (SURYA KANT) JUDGE 22.09.2009 shonkar