C.R. No.4462 of 2006 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4462 of 2006 (O&M) Date of Decision: 21.08.2009 Jai Singh .....Petitioner Versus Labh Kaur and others ...Respondents Present: Mr. Tribhuwan Singla, Advocate for the petitioner. Mr. H.S. Saggu, Advocate for respondents No.1 to 4. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. (ORAL) 1. The revision is against an order dismissing an application filed for setting aside an ex parte decree at the Appellate Court. The Appellate Court was affirming the order passed by the trial Court refusing to set aside the ex parte decree. 2. The suit relates to a claim for immovable property and a claim for specific performance on an agreement of sale in favour of the plaintiff purported to have been executed by the 1st defendant on 20.07.1987. The 1st defendant was the vendor and the 2nd defendant is the petitioner before this Court who claimed right to the property under an independent decree obtained by his father. Learned counsel for the petitioner brings to my attention that his father had obtained an C.R. No.4462 of 2006 (O&M) -2- agreement from the 1st defendant on 23.09.1987 and when the vendor failed to fulfill his obligation, he filed a suit for specific performance and a decree was passed after contest on 11.12.1990 and appeal filed by the 1st defendant was dismissed on 27.08.1993 and a second appeal filed before this Court was dismissed at the stage of admission on 28.11.1994. Before the ink dried on the decree, the present suit came to be filed at the instance of the plaintiff on 12.12.1994 making the vendor as 1st defendant and the present petitioner as the 2nd defendant. Both the defendants had been set ex parte and an ex parte decree was passed. 3. The contention of the petitioner was that he came to know about the ex parte decree only when he was taking steps to execute the decree which he had obtained and it became obvious to him that the 1st defendant had colluded with the plaintiff to set up an ante-dated agreement of sale to defeat his rights. Admittedly, it was the case where the summons had not been actually served and the Court had ordered substituted service by affixture in Munadi. The trial Court found that the petitioner had not given any definite date of his knowledge when he came to know about the decree. The process servers had also been examined in Court on the side of the plaintiff to speak about the fact that the petitioner had refused to receive the summons. These factors were taken to be sufficient enough to justify dismissal by the trial Court. The Appellate Court affirmed the same. 4. In my view when it was an admitted case that summons had not been really served and the service had been only through the substituted mode, the Court ought to have exercised its discretion to C.R. No.4462 of 2006 (O&M) -3- set aside the ex parte decree for the only reason that the petitioner was not making a hollow claim. He was resting his entitlement to the property by virtue of decree obtained through long drawn litigations. The Court ought to have also seen the prima facie strength of his contentions that the instant decree had been obtained immediately after the 1st defendant had lost the litigation in respect of the very same property upto High Court. The petitioner had definitely more than a mere semblance of a defence. It was indeed even formidable for the plaintiff to sustain his claim if the contentions were to be true. 5. In my view, it is eminently a fit case where the petitioner shall be given an opportunity to contest the case on merits. The suit has been filed in the year 1994 and it is only hoped that both the parties shall cooperate and secure an expeditious disposal at the trial Court's hands. The petitioner shall file his written statement, if the copy of the plaint has been served on him within two weeks from the date of the appearance before the Court. 6. The orders of the Court below are set aside and the civil revision is allowed. The parties shall appear before Court on 21.09.2009. It is made clear that all the observations that I have made, have a bearing only for the purpose of a consideration of interlocutory application and shall have no bearing on the merits of the respective contentions of the parties in relation to the case. (K. KANNAN) JUDGE August 21, 2009 Pankaj*