Punjab-Haryana High Court
Mohinder Singh & Anr vs Mohinder Singh & Ors on 21 August, 2008
CR No.1030 of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.1030 of 2005
Date of Decision: 21.8.2008
Mohinder Singh & Anr. ..Petitioners
Vs.
Mohinder Singh & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.B.R.Mahajan, Advocate,
for the petitioner.
Mr.R.K.Joshi, Advocate,
for respondent No.1.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
Vinod K.Sharma,J. (Oral)
This revision petition is directed against the order passed by the learned courts below dismissing an application moved by the petitioners under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure CR No.1030 of 2005 2 for setting aside ex parte decree passed by in favour of the plaintiff- respondent.
A suit titled as 'Mohinder Singh Vs. Uttam Singh and others' was decided by the court of learned Sub Judge II Class, Amritsar on 24.10.1985. Said judgment was ex parte.
The petitioner moved an application under Order 9 Rule 13 of the Code on the ground that the petitioners were never served at any point of time in those proceedings. It was the case of the petitioners that summons were never served upon them and no registered covers were tendered by the plaintiff-respondent. It was claimed that the plaintiff/ respondent in connivance with some of the officials of Process Serving Agency managed to obtain a false report regarding their service with a view to obtain ex parte judgment and decree against them. It was claimed that the plaintiff-respondent also concealed material facts from the learned court for getting the above said impugned decree at their back which is evident from the fact that the plaintiff respondent did not get the decree executed till 9.10.1997 i.e. almost for a period of 12 years. During this long period the decree was kept closely guarded secret and that is why the petitioners never came to know about the same.
It was claimed by the petitioners that they have already set up their factory at the disputed site and they are fulfiling their export commitments by working therein for the last so many years. The petitioners also raised loan from Punjab Financial Corporation. It was claimed that the petitioners came to know about the said judgment and decree only on 22.8.1998 when they visited the court premises in connection with their CR No.1030 of 2005 3 other cases and after making inquiries the application was immediately filed on 29.8.1998. The petitioners also claimed that as per basic principle of law rights of various parties should preferably be adjudicated on their merits and technicalities of law should not come in the way of justice. It was also claimed that the absence of the petitioners was neither intentional nor willful and therefore, they should be allowed to defence the suit and ex parte judgment and decree be set aside.
The application was supported by an affidavit.
The application was contested by the plaintiff-respondent, inter alia, on the ground that the petition was not maintainable as the same was barred by limitation. The allegations that the petitioners were not served was also denied. It was claimed that both the petitioners and other defendants were members of the same family who were duly served and did not appear in the court despite service and therefore, they were rightly proceeded ex parte. The contention that incorrect report was procured with the connivance of Process Server was also denied. The respondent plaintiff further claimed that the decree was well within the knowledge of the petitioners in spite of which they kept on raising construction at the spot simply by turning blind eye thereto. The averments that the petitioners came to know about the said decree on 22.8.1998 was also denied.
The learned trial court on the pleadings of the parties framed the following issues:-
"1. Whether the application is within limitation? OPA
2. Whether there are sufficient grounds to set aside ex parte judgment and decree dated 24.10.85 passed by CR No.1030 of 2005 4 court of Sh,.Naginderjit Singh,the then Sub Judge II Class, Amritsar? OPA
3. Relief.
The petitioners in support of their petition examined Harbhajan Singh, Record Keeper as AW 1 and Mohinder Singh petitioner himself appeared as AW 3. Thereafter evidence was closed. In defence plaintiff-respondent Mohinder appearing as RW 1 and also examined Mohinder Singh son of Bawa Singh as RW 2 and thereafter evidence was closed.
Learned trial court decided both the issues against the petitioners and consequently dismissed the petition.
The appeal filed by the petitioners also stands dismissed by the learned Additional District Judge, Amritsar.
Mr.B.R.Mahajan, learned counsel appearing on behalf of the petitioners contended that Uttam Singh was owner of land measuring 202 Kanals by way of sale deed dated 23.1.1980. 12 kanals of land was sold to defendants No.3 to 5 in the suit and by way of another sale deed of the same date 7 kanals 15 marlas of land was sold to defendant No.6. After about 5 years of the execution of the sale deed the plaintiff respondent son of Uttam Singh filed a suit to challenge the said sale deeds by claiming that Uttam Singh was addict and a gambler and the sale deeds were made by him without legal necessity.
Learned counsel for the petitioners referred to the proceedings of the case which show that the case was put up before the learned trial court on 22.2.1985 wen notice was issued to the defendants for 22.3.1985. CR No.1030 of 2005 5 Learned trial court on 22.3.1985 noticed that Registered Covers were not issued due to deficiency of stamps. The plaintiff respondent was given 2 days' time to make good the deficiency and the defendants thereafter were ordered to be summoned for 3.5.1985 by way of registered covers. On 3.5.1985 it was noticed that A,.D were not received back and the case was adjourned to 21.5.1985. On 21.5.1985 it was noticed that Tara Singh and Mohinder Singh defendants No.6 and 5 were served but they were absent and they were ordered to be proceeded ex parte. It was further observed that registered covers for the other defendants were not received back and the case was adjourned to 11.6.1985. On 11.6.1985 it was noticed that Registered Covers were not received back and as the period of one month had expired and accordingly their service was presumed. They were also proceeded ex parte.
Ex parte proceedings were recorded and decree was passed on 24.10.1985.
The plaintiff respondent took no steps for execution of the said decree for almost 12 years and then before 15 days prior to 12 years filed an execution application for executing ex parte decree.
Learned counsel for the petitioners vehemently contended that in the present case it has been proved on record that the petitioners were not served for the reason that there was no material on record to show the service except for the report of Ahlmad which was based on no material, whatsoever.
Learned trial court in the impugned judgment recorded a positive finding that the court could not find any material on record on the CR No.1030 of 2005 6 basis of which the report was made by Ahlmad. However, came to the conclusion that it could not find any material on the basis of which the report was submitted by the Ahlmad. However, failed to interfere with the order on the ground that his predecessor had accepted the said report and thus, the court had formed a subjective satisfaction about service.
The contention of Mr.B.R.Mahajan, learned counsel for the petitioners, therefore, was that in view of this finding no other conclusion but to hold that the petitioners were not served could have been arrived as there was absolutely no material except the report of the Ahlmad which was also based on no material. Learned counsel for the petitioners further referred to the statement made by the plaintiff respondent wherein in cross- examination he admitted that it is correct that the defendants-judgment debtors resided at the address of Kala Name Shah, Dhab Wasti Ram from 1965 to 1985.
The contention of the learned counsel for the petitioners therefore, is that in view of the admission made by the plaintiff it could safely be said that in the present case there was no service on the petitioners and the presumption that the petitioners stood served at the factory premises therefore, could not be drawn as admittedly registered covers or A.Ds were not received back nor any postal receipt showing despatch of Register Cover placed on record.
Learned counsel for the petitioners further challenged the findings on issue No.2 on the plea that the petitioners had led evidence to show that the petitioners got knowledge of the ex parte decree only on 22.8.1998 and the present application was moved 7 days thereafter, CR No.1030 of 2005 7 therefore it was within limitation.
I find force in the contentions raised by the learned counsel for the petitioners.
As per provisions to Order 5 Rule 19-A mode of service by registered post is in addition to the service of summonsin the ordinary course. It may be noticed that in the present case no steps were taken to serve the petitioners by ordinary means and straightway the service was ordered by way of substituted service. This court in the case of M/s Dooars Transport Ltd. Vs. M/s Rattan Chand Harjas Rai Pvt. Ltd. & Anr., 2006 (4) RCR (Civil) 449 has been pleased to lay down as under:-
"2. The facts which are not in dispute are that the suit for recovery was filed on 19.4.1989 and on the same date notice was issued for 28.7.1989. Though the order passed on 19.4.1989 shows that the Court has mentioned that the service would be effected on filing of process fee, summons forms, copies of plaint as well as registered A.D.Covers. However, it is not in dispute that summons were sent only through registered covers and even though there was no proof of service on presumption of service ex parte proceedings were taken against the petitioner and ex parte decree was passed on 29.10.1990. It was only on 22.3.1991 that the petitioner came to know about the decree when Baillif approached them for the execution of the same and on that very day the application was moved for setting aside ex parte decree. However, learned courts below by treating that defendants were served on the CR No.1030 of 2005 8 basis of presumption of service rejected the application. It is not in dispute that in the year 1989 the court was bound to serve the defendant in pursuance of Order 5 Rule 19-A of the Code of Civil Procedure (for short the Code) which provided that resort by registered post could be taken simultaneously with personal service.
3. In the present case, there is clear violation of Order 5 Rule 19-A of the Code which was held to be mandatory by this Court in the case of Smt.Parmilesh Vs. Vinod Kumar 1997 (1) PLR 178. Para 10 of the judgment reads as under:
" From the trial Court's record, it is evident that in the matrimonial case on 3.1.1994 it was ordered that fresh process fee with her correct address be submitted by husband. There was no order that the notice be sent by registered post. From that record it is evident that on 24.1.1994 the husband paid process fee with registered cover; no order was obtained from the matrimonial Court and notices were sent by registered post to the respondent; no ordinary process was issued. Order 5 Rule 19-A provides that "the Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due...." Thus, it is obvious that the notices sent by registered post were sent CR No.1030 of 2005 9 against the aforementioned provision without obtaining the order from the matrimonial Court. Provisions of this Rule 19-A are mandatory. Legislature in its wisdom has cast a duty on the Court to issue summons by ordinary process also when he orders service through registered post. Non- compliance of this rule is not a mere irregularity. As I have mentioned above in this case notice was sent by registered post without obtaining order from the Court to that effect. That given an linking of the intention of the husband. Thus, the report of the postman should not have been relied on by the learned District Judge. Further there is oath against oath. The appellant has stated on oath that no notice was even tendered to her. She never refused to accept any notice. It is apparent that the husband managed to get the notice sent by registered post through the Clerk of the Court. It is not impossible for such a husband to get the endorsement of refusal made by a postman on such a registered letter. No doubt, postman has been examined by him, but under the afore-mentioned circumstances, the District Judge should not have relied on his oath. Thus, in my considered view, it is apparent on record that the appellant was not served in accordance with law."
4. Similar view has also been taken by Hon'ble Patna High Court in case Union of India Vs. Sri Laxmi Oil Mills, AIR 1984 Patna 252, wherein it was held as CR No.1030 of 2005 10 under in para No.5:
"It may be mentioned here that the learned court below directed for service of summons by registered post, even without issuing summons for service in the manner provided in Rules 9 to 19 of Order 5 of the Code. It must be noted that the mode of service by registered post is only in addition to the service of summons in the ordinary course. The Courts are, therefore, required to simultaneously sent notices in the ordinary course and by registered post. In the circumstances of the case we find that the learned court below did not take any step for issue of summons in the ordinary course, i.e. in the manner provided in Rules 9 to 19 of Order 5 of the Code. The procedure thus adopted by the court below in issuing summons by registered post in absence of the summons in ordinary course was wrongly adopted. Besides this, the proviso to Order 5, Rule 19-A (2) provides that the declaration referred to in this sub- rule shall be made notwithstanding the fact that acknowledgment having been lost or mislaid or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons."
In view of the settled proposition of law, the impugned CR No.1030 of 2005 11 order cannot be sustained. Accordingly, the revision petition is accepted and the impugned orders are set aside and the petitioner herein is allowed to contest the suit by filing written statement."
Mr.R.K.Joshi, leaned counsel appearing on behalf of the respondent, however, contended that there was no necessity to send process by ordinary means as the court could summon the defendants only by way of registered post. Learned counsel for the respondent further contended that if registered letter is properly addressed and prepaid and no acknowledgment is received back within 30 days of the date of issue of the summons the court can declare due service of summons.
In support of this contention reliance was placed on the judgment of this court in the case of M/s Mankoo Industrial Corporation, Ludhiana Vs. M/s Supreme Industries, Ludhiana (1987-2) P.L.R. 158, wherein this court was pleased to hold as under:-
"3. I do not find any force in these submissions. The receipt from the post office regarding the summonses sent by registered post is on the file of the trial Court as noticed by the learned Additional District Judge. It shows that the summonses were sent by registered post on 18.11.1981. It is with a view to avoid undue delay in the service of summonses that proviso to rule 19-A ibid provides that where the summonses were properly addressed, pre-paid and duly sent by registered post acknowledgment due, the Court ma declare that the summonses had been duly served on the defendant notwithstanding the fact CR No.1030 of 2005 12 that the acknowledgment had been lost or mislaid or for any other reason had not been received by the Court within 30 days from the date of the issue of summonses. This requirement of the statute having been complied with, the Court was well within its jurisdiction to declare due service of summonses on the defendant-petitioner."
However, judgment referred to above does not support the case of the petitioners. In the case of M/s Mankoo Industrial Corporation, Ludhiana Vs. M/s Supreme Industries, Ludhiana (supra) besides service of registered covers service was also ordered by ordinary means.
Furthermore, it may be noticed that there was sufficient evidence on record to show that registered covers were sent at the correct address as receipt showing dispatch of registered covers was proved on record.
In the present case, there is absolutely no material, whatsoever, to show the dispatch of registered covers and the service has been presumed to merely on the basis of report of the Ahlmad then there was no other material on record to form such opinion.
Thus, in view of the law laid down by this court in the case of M/s Dooars Transport Ltd. Vs. M/s Rattan Chand Harjas Rai Pvt. Ltd. & Anr. it has to be held that the petitioners were not served and thus, there was sufficient ground for setting aside ex parte judgment and decree dated 2.10.1985.
The finding of the learned courts below on issue No.1 also cannot be sustained as limitation is to start from the date of knowledge. CR No.1030 of 2005 13 Learned courts below were wrong in coming to the conclusion that fake date was mentioned by the petitioners. The conduct of the plaintiff-respondent in not executing the decree for 12 years only shows that the said decree was kept as guarded secret, therefore, there was no reason to disbelieve the evidence led by the petitioners with regard to the date knowledge. Thus, the finding on issue No.1 by the learned courts below also deserve to be set aside.
Learned counsel for the respondent placed reliance on the judgment of Hon'ble Supreme Court in the case of Shri M.L.Sethi Vs. R.P.Kapur AIR 1972 SC 2379 to contend that in exercise of revisional power it is not open to the court to interfere with the concurrent finding recorded by the learned courts below. Hon'ble Supreme Court in the said case has been pleased to lay down asunder:-
" The provisions of S.115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under S.115, it is not competent to the High Court to correct errors of fact however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As clauses (a)
(b) and (c) of S.115 indicate, it is only incases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revision jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may CR No.1030 of 2005 14 arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court and so an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S.115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court under S.115."
This authority is also of no help to the petitioners as in the present case the finding recorded by the learned courts below are perverse and based on no evidence, whatsoever.
Learned trial court noticed that except for the report of Ahlmad there was no material on record to show service. Service effected was also not in consonance with the provisions of Order 5 Rule 19-A of the Code and thus, when the findings recorded by the courts below are perverse and based on evidence it is always open to this court to interfere with such finding in exercise of revisional jurisdiction.
Lastly, it was contended by the learned counsel for the respondent that in view of the proviso to Order 9 Rule 13 of the Code ex parte decree cannot be set aside merely on the ground of irregularity of service of summons.
CR No.1030 of 2005 15
However, this plea also cannot be accepted as it is provided that irregularity in service is to be ignored if the court is satisfied that party had notice of the date of hearing and had sufficient time to appear and contest the claim of the plaintiff.
In the present case there has been no service on the defendants and therefore, the proviso to Order 9 Rule 13 of the Code is also of no help to the respondent.
For the reasons stated above this revision is allowed. Order passed by the courts below are set aside and the application moved by the petitioners for setting aside ex parte judgment and decree stands allowed.
The parties through their counsel are directed to appear before the learned trial court on 20.9.2008 for further proceedings in the case.
21.8. 2008 (Vinod K.Sharma) rp Judge