C.R. No.4093 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4093 of 2009 Date of Decision: 25.01.2010. Ajit Singh and others .......Petitioners Versus M/s Shivali Enterprises ......Respondent Coram: HON'BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Arun Nehra, Advocate for the petitioners. L. N. MITTAL, J (ORAL) Ajit Singh, Jagat Singh and Jagdish Singh sons of Ho Ram Singh have filed this revision petition under Article 227 of the Constitution of India. Respondent-M/s Shivali Enterprises filed suit against the petitioners and their father Ho Ram Singh. The petitioners were arrayed as defendant Nos.2 to 4 whereas their father Ho Ram Singh was arrayed as defendant No.1 in the suit. Perusal of the zimini orders (Annexure P-1) reveals that petitioner No.1 Ajit Singh, who was defendant No.2 in the suit, appeared through counsel on 11.12.1992 and on some subsequent dates of hearing. However, since written statement was not filed on his behalf despite several opportunities, his defence was struck off. Defendant Nos.1, 3 and 4 i.e Ho Ram, Jagat Singh and Jagdish Singh refused to accept summons by Registered AD post for 11.12.1992 (the date on which the petitioner No.1/defendant No.2 put in appearance through counsel). It was valid service of defendant Nos.1, 3 and 4, in view of Order 5 Rule 19-A of the Code of Civil Procedure (in short, C.P.C), C.R. No.4093 of 2009 -2- as it then existed. However, the trial Court by way of abundant caution, in order to afford another opportunity to defendant Nos.1, 3 and 4, ordered their service by publication in newspaper also. However, in spite of publication in newspaper and service by registered AD post as aforesaid, none appeared for defendant Nos.1, 3 and 4 and they were, therefore, proceeded ex parte. The suit was ultimately decreed vide ex parte judgment and decree dated 27.05.1994. Petitioners herein, as legal representatives of Ho Ram Singh-defendant No.1 since deceased, moved application on 08.06.1999 i.e more than five years after passing of the ex parte judgment and decree dated 27.05.1994, for setting aside the said ex parte judgment and decree. Learned Civil Judge (Senior Division), Faridabad vide order dated 16.01.2007 (Annexure P-7) dismissed the said application. Appeal preferred by the petitioners herein has been dismissed by learned Additional District Judge, Faridabad vide order dated 17.04.2009 (Annexure P-8). The petitioners have filed the instant revision petition assailing aforesaid orders (Annexures P-7 and P-8). The petitioners alleged in their application that on 21.05.1999, the plaintiff-respondent, through some persons claiming to be partners of the plaintiff-firm, came to the suit land and declared that they would not allow defendant No.1 to continue to remain in possession of the suit land as the plaintiff obtained ex parte decree from the Civil Court. Thereupon, the petitioners, through their counsel, inspected the file on 01.06.1999 and moved application for C.R. No.4093 of 2009 -3- setting aside ex parte judgment and decree dated 27.05.1994, which came to their notice for the first time on 01.06.1999 on inspection of the Court file. It was pleaded that defendant No.1 since deceased did not avoid or refuse to accept summons and he was never served. Respondent by filing reply contested the application and controverted the allegations made in the application. It was denied that petitioners are in possession of the suit land. The petitioners and defendant No.1 were duly served in the suit. They intentionally refused to accept summons by registered AD post and they were then served by publication in newspaper. I have heard learned counsel for the petitioners and perused the case file. Learned counsel for the petitioners contended that another suit was pending between the parties and, therefore, the defendants of the instant suit could be served in the Court, while appearing in the other suit. The contention is completely beyond pleadings and evidence. No such plea was taken in the application for setting aside ex parte judgment and decree nor any evidence was led to substantiate the aforesaid plea. Even otherwise, the defendants in the instant case could not be served while appearing in the other case because it could not be said that the defendants were appearing in person on every date of hearing in the other suit. Learned counsel for the petitioners also contended that the registered AD covers sent to defendant No.1, 3 and 4 did not bear postal stamp of the post office nor any date on endorsements of refusal made thereon. Both the Courts below have appreciated the evidence led by the parties. It is manifest from the record that C.R. No.4093 of 2009 -4- notices were sent to defendant No.1, 3 and 4 by registered AD post and the same were received back with report of refusal. In view of Order 5 Rule 19-A C.P.C, as it then existed, it was a valid service. However, in spite thereof, the aforesaid defendants were given another opportunity by effecting service by publication in newspaper, but defendant Nos.1, 3 and 4 did not opt to contest the suit. In addition to the aforesaid, it has to be noticed with significance that on 11.12.1992 , defendant No.2 i.e petitioner No.1 herein put in appearance in the trial Court through counsel. On the same date, notices sent to defendant Nos.1, 3 and 4 by registered AD post were received back with report of their refusal. Thereupon, service of notice on the said defendants by publication in newspaper was ordered in the presence of counsel for defendant No.2/petitioner No.1 herein. In spite thereof, defendant Nos.1, 3 and 4 did not think it proper to put in appearance in the Court even on the next date of hearing. Here it has to be noticed with significance that defendant No.2 Ajit Singh, who had put in appearance through counsel, is none else, but real son of defendant No.1 and real brother of defendant Nos.3 and 4. It is thus apparent that defendant Nos.1, 3 and 4 had knowledge and notice of the suit, but did not intentionally appear to defend the same. Even now, application has been moved on behalf of defendant No.1 Ho Ram Singh only (through his legal representatives) and not on behalf of defendant Nos.3 and 4. The instant application was also moved more than five years after the passing of the ex parte judgment and decree. The application was sought to be brought within limitation period by making vague plea that some persons claiming to be partners of respondent-plaintiff C.R. No.4093 of 2009 -5- came and declared that the plaintiff had obtained ex parte judgment and decree. Such a vague plea can be taken at any time and there is nothing on record to depict that defendant No.1 or petitioners had no notice or knowledge of the ex parte judgment and decree. In fact defendant No.2 i.e petitioner No.1 herein had put in appearance through counsel, but even he did not file written statement to contest the suit. This circumstance further makes it evident that all the defendants had no intention of contesting the suit. Learned counsel for the petitioners while relying upon a judgment of this Court in the case of Subedar Amar Singh versus Avtar Singh, 2003 (3) RCR (Civil), 580, contended that no ground for ordering substituted service of defendant Nos.1, 3 and 4 was made out. The contention cannot be accepted because defendant Nos.1, 3 and 4 had in fact been properly served through registered AD post whereas substituted service was only additional opportunity given to defendant Nos.1, 3 and 4 to put in appearance. Defendant Nos.1, 3 and 4 were proceeded ex parte not merely on the basis of the substituted service by publication in newspaper, but also because they had been served by registered AD post, when they refused to accept the same. The Court also cannot be oblivious of the fact which may be highlighted by way of repetition, that defendant No.2, who is son of defendant No.1 and real brother of defendant Nos.3 and 4, had put in appearance through counsel and ex parte proceedings were ordered against defendant Nos.1, 3 and 4 in the presence of counsel for defendant No.2. For the reasons recorded hereinabove, I find that the instant revision petition is completely frivolous and without any merit. C.R. No.4093 of 2009 -6- The petitioners are abusing the process of law. They have already failed in both the Courts below. Orders of the Courts below are well- founded and do not suffer from any infirmity. It is manifest that the petitioners and their father Ho Ram Singh since deceased did not intentionally contest the suit. The revision petition is accordingly dismissed with costs of Rs.10000/- to be deposited with the Registry of this Court. If the cost amount is not deposited within one month, the case shall be listed for this purpose. ( L. N. MITTAL ) JUDGE 25.01.2010. A.Kaundal