Civil Revision No. 5424 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5424 of 2009 Date of Decision: 27.4.2011 *** Kailash Rani .. Petitioner Vs. Vinod Kumar .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR Present:- Mr. G.S. Rawat, Advocate for the petitioner. Mr. B.R. Mahajan, Advocate for the respondent. *** ARVIND KUMAR, J. Both the Courts below have refused to set aside the ex-parte judgment and decree dated 9.6.2001 passed against the petitioner in a suit for specific performance of agreement to sell, filed by respondent-plaintiff. Heard. The stand of the petitioner-defendant was that she was never served personally in the said suit and that the application under Order 9 Rule 13 CPC could not be filed by her on account of negligence of her counsel, provided from the Legal Aid Services. On both the counts, she has been disbelieved. It has been held that she was personally served, but despite that she did not put in appearance before the Court and the responsibility shifted by her on the counsel is not genuine. It is evident from the record that in order to prove the service of summons upon the petitioner, Jarnail Singh, Process Server stepped into the witness box as RW2. As per report on the summons, the petitioner put her thumb impression in lieu of acceptance of service and also her own son Dalbir attested the same. To prove that it was not her thumb impression, the petitioner did not bother to get it compared from the hand-writing expert. Not only this, Dalbir, her own son, who attested the summons, was not Civil Revision No. 5424 of 2009 2 produced into the witness-box to show that the same even did not bear his signatures. In other words, the best available evidence was with-held by the petitioner for the reasons best known to her, whereas the onus to prove that she was not served in the suit lies upon her. Admittedly, the petitioner was served in the execution petition on 26.4.2002, even then she filed the application for setting aside the ex-parte judgment and decree on 17.11.2003 i.e. after about one year and six months of the date of gathering of knowing about the passing of ex-parte judgment and decree dated 9.6.2001. The version that she made a request for appointment of a counsel from legal aid, runs counter to the factual aspect and was found only to be an after-thought. Thus, the findings returned by the Courts below that the petitioner was served personally in the suit and the application filed by her under Order 9 Rule 13 CPC is barred by limitation, warrant no interference by this Court and are accordingly affirmed, taking into account the totality of the facts discussed above. There is no illegality or perversity in the impugned orders. The revision petition, being without merit, is accordingly dismissed. (ARVIND KUMAR) JUDGE April 27, 2011 Jiten