Civil Revision No.4038 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4038 of 2005 Date of Decision: October 13, 2009 Smt. Usha Jindal ...Petitioner Versus Shri surinder Singh and another ...Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. I.K.Mehta, Senior Advocate with Mr. R.K.Dogra, Advocate for the petitioner RAJIVE BHALLA, J. The petitioner challenges orders dated 28.09.2002 and 01.04.2005, passed by the Additional Civil Judge (Sr. Divn.) Bathinda and the Additional District Judge, Bathinda, dismissing her application for setting aside the ex-parte judgment and decree dated 07.02.1994 and her appeal respectively. Surinder Singh, respondent no.1, filed a suit for recovery of Rs.20,000/- by alleging that Dr. Pawan Kumar Goyal, the defendant, (since deceased, and now represented by the petitioner) borrowed a sum of Rs.20,000/- on 12.05.1989 after executing a pronote and a receipt. Dr. Pawan Kumar Goyal passed away in an accident on 24.10.1989. The petitioner and her mother in law were impleaded as defendants but were proceeded against ex-parte on 15.12.1992. The suit for recovery was decreed ex-parte on 07.02.1994, against the Civil Revision No.4038 of 2005 -2- petitioner and her mother in law. In execution proceedings instituted by Respondent no.1, 1/3rd of the petitioner's salary was attached. The petitioner immediately filed an application, on 26.09.2000, under Order 9 Rule 13 of the Code of Civil Procedure, praying that the ex-parte judgment and decree be set aside. The petitioner alleged that she had no knowledge of the suit, the ex-parte decree and the order passed in execution. She only came to know about these facts, on 07.09.2000 when her salary was attached. The application was opposed by respondent no.1 who alleged that the petitioner was served personally and by publication in a newspaper and was even otherwise aware of the pendency of the suit, the passing of ex-parte judgment and decree and the pendency of execution proceedings. On the pleadings of the parties, the trial court framed the following issues:- "1. Whether there are sufficient grounds for setting aside the ex-parte judgment and decree dated 15.12.1992?OPA 2. Whether the application is within time?OPA 3. Relief." On 28.09.2002, the trial court dismissed the application as barred by time. The appeal filed by the petitioner was also dismissed. Counsel for the petitioner submits that the petitioner was married to Dr. Pawan Kumar Goyal on 30.06.1989. The petitioner remained married for a period of four months as Dr. Goyal died in an accident on 24.10.1989. After her husband's death she was turned out of the matrimonial home. She had no knowledge that any loan that Civil Revision No.4038 of 2005 -3- had been raised by her late husband, about suit, the ex-parte decree or the execution proceedings as she was never served, whether in the suit or in execution proceedings. The alleged service, in the suit, by publication in a newspaper is null and void as respondent no.1 was directed to serve the petitioner by registered notices and by publication but, admittedly, respondent no.1, did not deposit registered covers. It is further argued that as the newspaper has limited circulation, the petitioner could not be said to be validly served by publication. It is further submitted that report by the process server, that he served the petitioner personally on 11.09.1997, is void as the process server did not record the statement of any witness. It is argued that in view of the above facts the interest of justice requires that the orders passed by the courts below be set aside. No one is present on behalf of the respondent no.1. I have heard counsel for the petitioner, perused the impugned orders and find no reason to accept the revision or to hold that the courts below have committed any error of jurisdiction as would require interference. As a general rule, courts tend to favour adjudication on merits, rather than non-suiting parties on technical or procedural impediments. Where, however, a plea is based upon facts that are false to the knowledge of the applicant, such a plea must necessarily be rejected, whatever be the circumstances of a party or the considerations in equity. The untimely death of her husband, and the fact that she was turned out of her matrimonial home may have entitled the petitioner to a sympathetic consideration but for her false averments and deposition. Civil Revision No.4038 of 2005 -4- The petitioner was impleaded as a legal representative of her deceased husband and despite publication in a newspaper did not put in appearance before the trial Court. The trial court, therefore, passed an ex-parte judgement and decree dated 07.02.1994. The notice in the newspapers, may not have come to her notice but the petitioner's allegation that she had no knowledge of the suit, the ex-parte judgment and decree or the pendency of execution proceedings is falsified by the report of baillif, who personally effected service on the petitioner, on 11.12.1977. The process server appeared in the witness box and deposed that he was entrusted with the summons by the Nazir, vide endorsement. no.2323. He visited Punjab Agriculture University on 11.12.1997 and approached the Head of the Department of Home Science, where the petitioner was working. He was informed that the petitioner was on leave but could be contacted at her residence. The summons were stamped and signed by Professor Manjit Kaur, the Head of Department. The process server further deposed that thereafter he visited the petitioner's house. The petitioner came out of her house and before serving a copy of the summons, he inquired about her name and on being satisfied about her identity thereafter served a copy of the summons. The petitioner signed the summons in his presence. Though, in his cross examination, he admitted that he did not know Usha Rani personally, he had no reason to make a false report or depose falsely. The deposition of this witness remains unrebutted. I find no reason to hold that the bailiff has deposed falsely or that he did not effect service upon the petitioner. It would be necessary to mention here that when the petitioner stepped into the witness box she denied her signatures on the summons. The original summons are Civil Revision No.4038 of 2005 -5- stamped by the petitioner's employer and signed by the Head of her department. Despite these facts, the petitioner chose to deny her signatures. It is therefore, apparent that though the petitioner was aware of the suit, the ex-parte judgement and decree and the execution proceedings at least on 11.12.1997 but she filed the instant application on 07.09.2000, when her salary was attached. As a consequence, the story that she came to know about the suit, the ex-parte judgement and decree and the execution proceedings when her salary was attached on 07.09.2000 was rightly rejected by the courts below. In view of false plea raised by the petitioner, she is not entitled to any relief, whether in law or in equity. In view of false plea raised by the petitioner, she is not entitled to any relief, whether in law or in equity. In view of what has been stated herein above and as the findings recorded by the courts below do not suffer from any error of jurisdiction, the revision petition is dismissed. October 13, 2009 (RAJIVE BHALLA) nt JUDGE