C.R. No. 5402 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5402 of 2011 Date of Decision: 15.11.2011 Dalip Kumar Jhuria ....Petitioner. Versus M/s Phool Chand Nand Lal Merchants & Commission Agents ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Suresh Kumar Aneja, Advocate for the petitioner. AJAY KUMAR MITTAL, J. 1. The judgment-debtor-applicant having failed in his endeavour to get the exparte judgment and decree dated 1.3.2004 passed in civil suit No. 119-I of 1.2.1999/27.4.1999 set aside before the trial court as well as the appellate court has invoked the revisional jurisdiction of this Court under Article 227 of the Constitution of India for setting aside the order dated 21.8.2008 (Annexure P-3) passed by the trial court and order dated 20.7.2011 (Annexure P-4) passed by the appellate court dismissing the application under Order 9 Rule 13 of the Code of Civil Procedure (In short “the Code”). 2. Put shortly, the facts necessary for adjudication as narrated in the petition are that the plaintiff-respondent filed a suit for recovery of Rs.2,87,574/- on the basis of entries in the account books against the defendant-petitioner. It was pleaded that the defendant was proceeded C.R. No. 5402 of 2011 -2- against exparte on the basis of wrong and procured report of process server as neither the defendant received summons nor he refused to accept the summons. Accordingly, the suit was decreed vide exparte judgment and decree dated 1.3.2004. On receipt of the notice of the execution application requiring him to appear on 18.12.2004, the defendant-petitioner filed an application under Order 9 Rule 13 of the Code for setting aside the exparte judgment and decree dated 1.3.2004. The said application was contested by the plaintiff-respondent by filing reply. The trial court vide order dated 21.8.2008 dismissed the application filed by the defendant-petitioner. Feeling aggrieved, the defendant-petitioner filed an appeal before the appellate court which was also dismissed vide order dated 20.7.2011. This prompted the petitioner to approach this Court by way of instant revision petition. 3. I have heard learned counsel for the petitioner. 4. Learned counsel for the petitioner submitted that there was contradiction in the evidence which was led by the plaintiff-decree- holder regarding the service of the defendant and, therefore, the courts below were not justified in rejecting the application for setting aside the exparte judgment and decree. He further submitted that there was no reason for the judgment-debtor-applicant not to appear and refuse summons and the courts below had not appreciated the controversy in the right perspective. 5. After giving thoughtful consideration to the submission of the learned counsel for the petitioner, I do not find any merit in the present revision petition. The trial court while rejecting the contention of the defendant-applicant had come to the conclusion that the petitioner C.R. No. 5402 of 2011 -3- had refused to accept the summons and there were no sufficient grounds for setting aside the exparte judgment and decree in question. The conclusion was arrived at by the trial court after appreciating the evidence led by the parties. The relevant finding recorded by the trial court reads thus:- “11. I have considered the rival contentions raised by learned counsel for the parties in the light of evidence on the record. RW1 Rajinder Kumar, Process Server has duly proved the service of the summons upon the applicant and also proved on the file his reports regarding refusal of service by the applicant and regarding effecting substituted service of that applicant through Munadi. The testimony of version of RW1 has been corroborated by RW2 Sudesh Kumar, partner of the respondent firm who also deposed that he accompanied the Process Server at the time of his visit to the applicant but the applicant refused to receive the summons and thereafter Munadi was also effected against the applicant in his presence AW2 Sahib Ram Chowkidar in his deposition has admitted that Process Server of the court along with son of Nand Lal met him in the village and Process Server obtained his thumb impressions on the summons and also admitted that again they met him for the service of the applicant through Munadi. In his cross C.R. No. 5402 of 2011 -4- examination he admitted that when the applicant returned to his house, he disclosed him that the Process Server, had brought his summons and as such his own witness is stating that the applicant came to know pendency of the suit. Further, the applicant has not alleged any enmity with RW1 Rajinder Kumar, Process Server and as such there is no motive with RW1 to depose falsely against the applicant. 12. In view of the above discussion, it is held that the applicant was duly served in the civil suit and there are no sufficient grounds to set aside the exparte judgment & decree in question. The exparte judgment & decree was passed on 1.3.2004 whereas the present application was filed on 10.1.2005 which is clearly barred by limitation. The applicant has not sought to condone the delay in filing the application by filing application under Section 5 of the Limitation Act nor there is any plausible explanation forthcoming on the file for condonation of such delay of about 9 months. Hence, it is held that the application is barred by limitation and the applicant is estopped by his act and conduct from filing the application after such delay. Accordingly, all these issues are decided against the applicant and in favour of the respondent.” C.R. No. 5402 of 2011 -5- 6. The said finding of the trial court was affirmed by the appellate court with the following observations:- “10. I have given my thoughtful consideration to the contentions of the learned counsel for the appellant, rival submissions of learned counsel for the respondents and have also perused the material available on record as well as the case law relied upon by the learned counsel for the appellant. 11. To decide the controversy between the parties to this effect that whether the appellant was properly served before the learned trial Court or not, it is essential that the summons as well as munadi be gone through. It is apparent from the record of the learned trial Court that summons were issued for 16.3.1999 in the name of the appellant and appellant had refused to accept those summons. This report of the Process Server was witnessed by Sahib Ram Chowkidar. After that the learned trial Court had ordered the issuance of Munadi against the appellant and munadi was issued for 11.5.1999. As per report made by Rajinder Kumar, Process Server, who has been examined as RW1 he had effected munadi and had also affixed one copy of the summon on the house of the appellant. This report was also witnessed by Sahib Ram Chowkidar. No doubt, Sahib Ram Chowkidar, who has been examined as C.R. No. 5402 of 2011 -6- AW2 has stated that he had just put his thumb impressions on the summons as well as on munadi, but the fact remains that in his cross examination he has indirectly admitted that appellant was properly served. He has stated that when summons were issued in the name of the appellant by the trial Court, he had informed him at his residence that summons had come from the court. He has further stated in his cross-examination that once the Process Server was accompanied with one more person and second time he had come alone. This witness has also stated that the appellant was not found at home when the Process Server had come, but later on summons were delivered at his house. This part of the cross- examination of Sahib Ram Chowkidar, who had witnessed the report on summons as well as munadi shows that the appellant was well in knowledge of the pendency of the suit against him. Statement of RW1 Process Server Rajinder Kumar corroborates this fact as he has stated that earlier summons were issued in the name of the appellant which were refused to be accepted by the appellant. He has also stated that later on munadi was issued which was effected against the appellant as per law. Both these documents are very much there on the file of the learned trial court which shows that there remains C.R. No. 5402 of 2011 -7- no doubt to this effect that the appellant was properly served in the said suit.” 7. Learned counsel for the petitioner was unable to point out any illegality or perversity in the findings recorded by the courts below. Accordingly, there is no merit in this revision petition and the same is hereby dismissed. November 15, 2011 (AJAY KUMAR MITTAL) gbs JUDGE