Punjab-Haryana High Court
Jaspal Kaur vs Mander Singh on 15 November, 2000
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is a civil revision and has been directed against the order dated 19.12.1998, passed by the Court of Additional District Judge, Moga who dismissed the appeal of the petitioner by affirming the order of the trial Court dated 13.8.1987, who dismissed the application of the petitioner under Order 9 Rule 13, CPC, for setting aside the ex parte decree dated 8.8.1991.
2. Some facts of the case can be noticed in the following manner :-
3. The plaintiff-respondent filed a suit for declaration to the effect that he is the owner of the property to the extent of 2/3 share on the basis of natural succession. The present petitioner was added as a defendant. She was proceeded ex parte and an ex parte decree was passed on 8.8.1991 declaring that the plaintiff-respondent is owner to the extent of 2/3 rd share in the property in dispute. The petitioner filed an application under Order 9 Rule 13, CPC, for setting aside the ex parte decree on the plea that she was never duly served and a fraud has been played upon her. She further stated that she had sold the entire property to Malkiat Singh and Chhinder Singh vide sate deed dated 4.5.1990 for a valuable consideration of Rs. 80,000/- and, since then, the vendees are in lawful possession of the property. She came to know about the ex parte decree on 24.2.1992 from the Kanungo and that is why she filed an application under Order 9 Rule 13, CPC, on 8.5.1992.
4. Respondent filed reply to the application and denied the allegations. The trial Court framed the following issues from the pleadings of the parties :-
1. Whether ex parte decree dated 8.8.1991 is liable to be set aside on the grounds mentioned in the application ? OPS.
2. Relief.
5. The parties led oral and documentary evidence in support of their case and it was observed by the trial Court on 13.8.1997 that there is no sufficient cause for setting aside the ex parte decree. Moreover, the application was barred by limitation.
6. Aggrieved by the order of the trial Court, the petitioner filed an appeal before the Court of the Additional District Judge, who vide judgment dated 19.12.1998, dismissed the appeal for the reasons given in para Nos. 9 to 12 of the judgment, which read as under :
"9. Shri B.R. Majithia, counsel for the appellant contended that RW-1 Surjit Singh who was process server having allegedly served the appellant vide reports Ex.R-1 and Ex.R-2 had not acted fairly and has not been able to establish the identity of the applicant because in his cross-examination, he has admitted that he did not personally know defendant Jaspal Kaur. Ran Singh, process server who appeared as RW-2 has proved that after refusal he had served the defendant by affixation and had given a report. He proved summon Ex. R-3 and his report Ex. RW-4. Shri Majithia has vehemently assailed his conduct and argued that after refusal the process server has no jurisdiction to himself serve the summons by affixation. It was contended that Ram Singh process server had also acted contradictory to the provisions of CPC and usurped the jurisdiction.
10. In order to appreciate whether there had been due service of respondent, I have carefully perused the reports of the process server Surjit Singh Ex. R-1 and Ex.R-2. Report Ex. R-1 shows that Surjit Singh had gone to Jaspal Kaur but she refused to accept the service on 6.2.1990. Vide Ex. R-2 it is apparent that on 16.2.1990, he again visited the house of Jaspal Kaur. He reported she evaded service. Therefore, he affixed the summons at her house. Summons were again issued to Jaspal Kaur copy of which is Ex. R-3. On the summon, it is specifically mentioned that it was ordered that service be effected through munadi. As per report Ex. R-4 of Ran Singh, Process Server, after refusal he had affixed the summons. The question to be determined in this case is as to whether the service in the present case will be deemed to valid service having been effected in accordance with law. The provisions of Order 5 Rule 17 indicate that when the defendant refuses to sign the acknowledgement or the serving officer, after using all due and reasonable diligence cannot find the defendant, the serving officer shall affix copy of the summons on the outer door or any other conspicuous part of the house and to report that he had so affixed the copy. This has to be done in presence of the person who had identified the house and in whose presence copy was affixed. The procedure adopted by Surjit Singh and Ran Singh process servers, was not beyond the provisions of law. Thus, no infirmity can be found in the judgment of the trial Court holding that the defendant-appellant has been duly served. Besides, that there is the ratio of rulings 1991 PLJ 173 : 1991(2) RRR 303 (P&H), Dev Koran v. Bhagwan Dass where it was observed that as ex parte decree cannot be set aside on the sole ground that there had been irregularity in the service of summons, especially when the application for setting aside the exparte ecree was filed beyond limitation. Reliance has also been placed by counsel for respondent on 1997(2) CC Cases 204 : 1997(4) KRR 301 (HP), Ram Narain Singh v. Smt. Gurinder Kaur and another, wherein it was held that after the expiry of period of limitation each day's delay has to be explained. It was observed in the said judgment that when a litigant is negligent and is not bothered about his rights, for such a litigant the law cannot come to the rescue because law always helps vigilant litigant.
11. I have gone through the ratio of the judgments relied upon by the counsel for the appellants. The said authorities are not applicable to the facts of the present case in view of the fact that there has not been any dispute regarding identification of the defendants or their house. In cross- examination, it was never suggested to defendant No. 2 that she lived at some other place or the affixation could have been done in front of some other house or that the report of refusal pertains to some other person.
12. The next question to be determined in this case is whether the application can be considered to be within limitation. In this case, ex parte decree was passed against the defendant-appellant on 8.8.1991 and the application was filed on 24.3.1992. The period of limitation for moving an application for setting aside ex parte decree is 30 days. The appellant has not been able to establish that she acquired knowledge about the ex parte decree when warrants were issued by the Court in execution proceedings and the warrants were taken to Kanungo for execution. The date of knowledge has been mentioned as 24.3.1992 but no evidence has been led to indicate that she acquired knowledge on the said date. In this case, the conduct of the appellant in executing the sale deed dated 4.5.1990 gives an indication that she had acquired knowledge about the pendency of the suit which had been filed on 8.1.1990. The case was adjourned to 12.4.1990 after 6.2.1990 when the process could not be served. A perusal of order dated 12.4.1990 shows that report regarding refusal had been received. Vide order dated 8.6.1990, it was ordered that defendant be summoned for 12.9.1990 through munadi. The defendant had been evading service but when her service was ordered by munadi, she executed the sale deed of the property in dispute gives an indication regarding her mala fide intention. The period of limitation under Article 123 of the Schedule of Limitation Act, 1963 is prescribed as 30 days and it was incumbent upon the defendant to explain each day's delay which the defendant has failed to prove."
7. As per the petitioner, she came to know about the passing of the ex parte decree on 24.2.1992. In these circumstances, she should have filed the application within 30 days from the date of knowledge of the ex parts decree. The present application, admittedly, has been filed beyond 30 days. Therefore, it is barred by limitation.
8. Even on merits, this Court is of the considered opinion that the petitioner was duly served in the main suit though it was the principal argument of the counsel for the petitioner that at the first instance the trial Court could not issue summons in the ordinary manner as well as by registered cover.
9. I have considered the submission of the counsel for the petitioner in the light of the order dated 19.12.1998, passed by the first appellate Court, and am of the considered opinion that the petitioner refused to accept the service on 6.2.1990. The Court made repeated efforts for the service of the petitioner. So much so. the service was effected through Munadi. I do not want to differ with the reasons given by the first appellate Court. Further, I have been able to formulate an opinion that the present revision has been filed at the instance of the vendees whose suit has already been dismissed and it is stated at the Bar by the counsel for the petitioner that against that judgment and decree, an appeal is pending before the first appellate Court.
10. No merit. Dismissed.
11. Appeal dismissed.