C.R. No. 4469 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4469 of 2011(O&M) Date of Decision: 18.10.2011 Ghanshyam Dass .... Petitioner Versus Mahesh Chand ... Respondent CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present : Mr. Salim Ahmed, Advocate for the petitioner 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? RITU BAHRI J. (ORAL) This Civil Revision has been filed under Article 227 of the Constitution of India for setting aside the the Ex-parte judgment and decree dated 24.11.2003 and orders dated 3.11.2009 and 30.10.2010 passed by the Courts below. The plaintiff filed a suit for specific performance on 7.8.2002 before learned Addl. Civil Judge (Sr. Divn.) Ferozepur Jhirka that he had entered into agreement to sell on dated 13.12.1999 for consideration of Rs. 62,000/- out of which Rs. 30,000/- was paid at the time of execution of the agreement and remaining sale consideration was to be paid at the time of execution and registration of sale deed dated 10.12.2001. The plaintiff went to the office of Sub Registrar, Punhana along with remaining sale consideration but the defendant did not reach there. An application C.R. No. 4469 of 2011(O&M) 2 was moved before Sub Registrar for marking his presence. The suit of the plaintiff was decreed ex-parte vide order dated 13.8.2002. The petitioner/defendant filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte order. This application was dismissed on 3.11.2009. An appeal filed before Addl. District Judge, Mewat was dismissed on 30.10.2010. The grievance of the petitioner- defendant is that an ex-parte order against the defendant was obtained on 13.8.2002 and thereafter an ex-pare judgment was passed on 24.11.2003 by playing fraud on the Court. No notice or summons were ever served upon the applicant, nor copy of plaint or documents were attached with the summons, nor the applicant ever refused to accept the summons or notice. On the application filed under Order 9 Rule 13 CPC the respondent/plaintiff has took preliminary objection regarding the maintainability of the application as it was part by limitation and estoppel. The defendant had illegally served in the suit as well as the execution petition but he did not come present in the Court and the present application is to harass the respondent/plaintiff. After the ex-party decree was passed in favour of the plaintiff/respondent, he filed an execution petition. The defendant had full knowledge and notice of the pendency of the suit from the very beginning. From the pleadings of the parties, the following issues were framed:- (1) Whether ex-parte judgment and decree dated 24.11.2003 is liable to be set aside on the grounds mentioned in application? (2) Whether the application of J.D. is not maintainable ? C.R. No. 4469 of 2011(O&M) 3 (3) Whether the application of J.D. Is time barred? In order to prove the allegations made in the application, the applicant-Ghanshyam Dass had appeared as PW1 and tendered affidavit Ex.A1 reiterating and reasserting his claim. PW-2 Ramesh also tendered affidavit Ex.PW2/A supporting the case. The plaintiff/ respondent examined Ballu Ram Bailiff as RW1 who proved copy of the summon issued for 13.8.2002 as Ex.R1 and reported on the back of the summons as Ex.R2. These documents sufficiently proved that summons were served upon the defendant-applicant. The plaintiff- respondent proved the legal notices Ex.P3 and postal receipt Ex.P4. These were sent to the petitioner/defendant at the address which was mentioned in the application filed under Order 9 Rule 13 CPC. When the address on the legal notice was correct, a presumption was drawn that the registered legal notice was duly served upon defendant. The trial Court dismissed the application in view of the evidence led by the plaintiff/respondent. On appeal, the District Judge, Nuh has affirmed the order passed by the trial Court by coming to the conclusion that the ex- parte judgment and decree dated 24.11.2003 is void. The defendant was directed to execute the sale deed in favour of the plaintiff in terms of the agreement to sell dated 13.12.1999 within a period of 6 months. The plaintiff was directed to serve a legal notice to execute a sale deed. The plaintiff served legal notice on 22.01.2004 for execution of sale deed. These legal notices Ex. P-3 and P-4 were sent by registered post and a presumption is that the registered legal notices had been been received by the addressee. These legal C.R. No. 4469 of 2011(O&M) 4 notices were sent on 22.1.2004 when the defendant did not lead evidence. At this time the petitioner/defendant filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte judgment and decree dated 24.11.2003. As per the statement made by RW-1 Ballu Ram, the summons were duly despatched on his house and in his report Ex. P2 the affixation of the summons at the house of the defendant was made and the eye witness is respectable persons i.e. RW-2 Khem Chand who is also Member Panchayat of Punhana and witness to the summons. He has stated in his cross-examination that the said process server took the summons inside the house of Ghanshyam Dass and he remained standing outside. In view of the statement made by RW-2 – Khem Chand who was witness to the summons which was pasted on the house of Ghanshyam Dass, the conclusion is that the summons were issued and it require no interference. The defendant had full knowledge about the suit as he was duly served by legal notice dated 23.1.2003 Ex. P-3 and Ex. P-4 and he was informed by Registered post to execute the sale deed. In view of the facts discussed above, no ground is made out to interfere in the impugned judgment dated 3.11.2009 passed by learned Addl. Civil Judge (Sr. Divn.) Ferozepur, Jhirka and judgment dated 30.10.2010 passed by learned Addl. District Judge, Nuh, District Mewat. Civil Revision is dismissed. (RITU BAHRI) 18.10.2011 JUDGE reena