R.S.A. No. 2231 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2231 of 2009 (O&M) Date of decision: 28.05.2009 Bachan Kaur ....appellant versus Punjab Sind Bank and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. R.K. Chhibbar, Sr. Advocate, with Mr. Ranjit Chawla, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 6671-C of 2009 For the reasons stated the application is allowed. The filing of certified copy of the judgment and decree of the learned trial Court is dispensed with, and appellant is allowed to file typed copy. R.S.A. No. 2226 and C.M. No. 6672-C of 2009 The defendant-Bachan Kaur has invoked the jurisdiction of this Court under Section 100 of the Code of Civil Procedure to challenge the judgment and decree dated 23.4.2009 passed by the learned Courts R.S.A. No. 2231 of 2009 (O&M) -2- below, vide which the suit filed by plaintiff/respondent No. 1 i.e Punjab & Sind Bank, under Order 37 of the Code of Civil Procedure, stands decreed. Plaintiff/respondent No. 1 brought a suit against the appellant and other two defendants, under Order 37 of the Code of Civil Procedure for recovery of Rs.11,14,443/- i.e. loan advanced along with interest. The loan was advanced for purchase of ESPI combine harvester. The appellant along with Malkiat Singh stood guarantors. The suit was decreed against defendants No. 1 and 3, and were held to be jointly and severally liable to pay the decretal amount to the bank, as they failed to contest the suit. Defendant No. 2 had appeared in the Court and sought leave to contest. Defendants No. 1 and 3 were served through munadi and affixation. After contest by defendant No. 2, the decree was passed against defendant No. 2 on 7.2.1991. The case set up in appeal was that when the matter was pending before the Hon'ble High Court, a compromise was effected before the Lok Adalat on 30.10.1999, and that the amount had been paid to the bank by the appellant on 29.5.2007. It was claimed that the bank was not entitled to recover any other amount, as the award of Lok Adalat has become final. It was also claimed that the appellant was not served on prescribed proforma along with necessary documents, as provided under the provisions of Order 37 of the Code of Civil Procedure, therefore, there was no proper service. The claim of the appellant was contested whereby while admitting the factum of compromise the respondent/plaintiff pleaded that the defendants failed to repay the loan amount as per compromise R.S.A. No. 2231 of 2009 (O&M) -3- effected before the Lok Adalat, therefore, the bank was entitled to recover the amount as per the judgment and decree passed by the learned trial Court. It was also the stand of the respondent/plaintiff that the appellant was fully aware of the pendency of the suit, as Malkiat Singh the contesting defendant was the son of appellant, and that the appellant had intentionally not appeared before the Court. It was also the case set up that the appellant chose not to seek setting aside of ex parte proceedings and that the appeal was merely to delay the execution proceedings. The learned lower appellate Court held that the notice of the suit was given to the defendants, under provisions of Order 37 of the Code of Civil Procedure on prescribed proforma. In pursuance to the notice, only defendant No. 2 appeared to contest the case. Whereas appellant evaded service. It was in that situation that defendants No. 1 and 3 were summoned through munadi and affixation, which was effected on 17.8.1990. On 17.8.1990 the counsel on behalf of the appellant appeared and filed vakalatnama, but thereafter the counsel stopped appearing in the Court on behalf of appellant and defendant No. 1. The suit was contested only by defendant No. 2. The decree, therefore, against the defendants No. 1 and 3 was passed on 7.2.1991, against which the appeal was preferred. The appellant in spite of appearance had not moved any application for leave to defend nor she filed application for setting aside ex parte order. The suit against defendant No. 2 after contest was decreed by Debt Recovery Tribunal, Jaipur, on 29.1.1997. R.S.A. No. 2231 of 2009 (O&M) -4- The learned lower appellate Court was further pleased to hold that as regards the proceedings before the Hon'ble High Court are concerned, it is for the learned executing Court to see whether the decree stood satisfied or not. The Court in appeal was not to decide about the satisfaction of decree on compromise between the parties. On the basis of findings recorded above, the appeal was ordered to be dismissed. Mr. R.K. Chhibbar, learned senior counsel appearing on behalf of the appellant, contends that the appeal raises the following substantial questions of law: - “1. Whether the learned lower appellate Court failed to perform its duty in not taking into consideration the subsequent facts with regard to the compromise entered into between the parties? 2. Whether non-service of notice in Form 4 (Appendix-B) renders the decree to be without jurisdiction?” In support of the substantial questions of law, the learned senior counsel for the appellant referred to the orders passed by the learned trial Court, which read as under: - “That on 16.09.1989, registered on 11.11.1989, plaintiff Punjab & Sind Bank, Moga filed a Civil Suit against the defendant No. (1) Balraj Singh (loanee), (2) Malkiat Singh and (3) Bachan Kaur (both guarantors), under the Provisions of Order 37 (Summary Procedure) CPC for the recovery of Rs.11,14,443/-.” “11.4.1990. Present: Counsel for the plaintiff and defendant No. 2. Defendants No. 1 (Balraj Singh Loanee) and R.S.A. No. 2231 of 2009 (O&M) -5- 3 (Bachan Kaur appellant) not served. Summons received back unserved. Defendant Nos. 1 and 3 be served through Munadi and Affixation of summons on 22.05.1990 P.F. and Munadi Fee be deposited within three days. Sd/- SJIC 11.04.1990” “Process fee not filed. That the case was prepared since the Presiding Officer was to go on leave and the following orders were passed on 16.5.1990. Present none. File taken up today as I shall be on leave on 22.5.1990. Defendants 1 & 3 be again summoned through “Munadi” and Affixation for 17.8.1990. Sd/- SJIC 16.5.1990.” “17.8.1990 Present: Counsel for the plaintiff, defendants Nos. 2 & 3, defendant No. 1 (Balraj Singh Loanee) served through Munadi, but none has appeared on behalf on him, ex-parte proceedings are ordered to be taken against him. For further proceedings to come up on 10.9.1990. Sd/- SJIC, Moga 17.8.1990.” The contention of the learned senior counsel for the appellant is that it was proved on record that the appellant was served through munadi and affixation, therefore, it could not be said to be a valid service under Order 37 of the Code of Civil Procedure. In support of this contention, the learned senior counsel placed reliance on the judgment of this Court in M/s Atma Tube Products Ltd and others Vs. Steel Authority of India Ltd, 2001(2) PLR 33 wherein this Court has been pleased to lay down, that issuance of summons in R.S.A. No. 2231 of 2009 (O&M) -6- Form 4 (Appendix-B) is mandatory, so far as the suit filed under Order 37 of the Code of Civil Procedure is concerned. In case summons are not issued in Form 4 (Appendix-B), it cannot be said to be a valid service and the suit is to be treated as ordinary suit. The plea raised by the learned senior counsel cannot be accepted. In the present case, summons were issued in Form 4 (Appendix-B), as is clear from the order passed by the learned trial Court. This fact is further proved from the appearance of defendant No. 2 wherein in pursuance to the notice, he appeared and moved an application for leave to defend. It was only on account, that appellant evaded service, that she was served through munadi and affixation. In pursuance to service she appeared, but did not choose to contest the case. Nothing was placed on record as to whether by way of affixation summons issued were ordinary summons or in Form 4 (Appendix-B). The findings of the learned lower appellate Court, therefore, cannot be faulted with merely on bald assertions of the appellant. The judgment relied upon by the learned senior counsel therefore, has no applicability to the facts and circumstances of the present case. The next contention of the learned senior counsel for the appellant is that the learned lower appellate Court has failed to take notice of the subsequent events which had taken place in pursuance to the decree passed i.e. a writ petition No. 3055 of 2007 was filed in which offer was made for compromise. In pursuance to offer, auction of the property was stayed. The reference was also made to the subsequent orders passed by this Court in the civil writ petition to contend, that once subsequent facts were brought to the notice of the learned lower R.S.A. No. 2231 of 2009 (O&M) -7- appellate Court, it was the duty of the Court to have gone into those questions to do substantial justice. In support of this contention, the learned senior counsel placed reliance on the judgment of the Hon'ble Rajasthan High Court in Bank of Baroda Vs. Nand Kishore Kachhwaha, AIR 1991 Rajashthan 151, wherein it was held that in appeal subsequent events can be taken into account when no prejudice is caused to adversary. The decision of the Hon'ble Rajasthan High Court is under the provisions of the Rent Act where it is settled law that subsequent events can be taken note of to determine the relief claimed by the landlord to seek eviction of tenant. The judgment cannot be applied to the civil proceedings, as the civil Court is to decide the case on the pleadings and evidence, rather it is well settled that civil Court cannot look into the evidence which is beyond pleadings. The learned senior counsel for the appellant also placed reliance on the judgment of the Hon'ble Supreme Court in Municipal Board, Kishangarh Vs. M/s Chand Mal & Co., AIR 2000 Supreme Court 3611, to contend that subsequent events can be taken note of.. The reliance on this judgment is also mis-conceived, as the Hon'ble Supreme Court has considered the provisions of Order 41 Rule 27 i.e. for leading additional evidence in appeal. It is not in dispute that no application for additional evidence was filed by the appellant. The points raised are not relevant for adjudication of the appeal. The fact whether under a compromise, decree has been satisfied or not is for the learned executing Court to see and it cannot be a ground for setting aside the judgment and decree passed by the learned trial Court, as contended. R.S.A. No. 2231 of 2009 (O&M) -8- For the reasons stated, the substantial questions of law raised are answered against the appellant. Finding no merit in the appeal, it is ordered to be dismissed in limine. (Vinod K. Sharma) Judge May 28, 2009 R.S.