Punjab-Haryana High Court
Umarddin And Another vs Liyakat Ali And Another on 20 October, 2011
Author: Jaswant Singh
Bench: Jaswant Singh
C.R.No.6450 of 2011 #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.R.No.6450 of 2011
Date of Decision: 20.10.2011
Umarddin and another
....Petitioners
Versus
Liyakat Ali and another
....Respondents
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Sachin Mittal, Advocate for the petitioners. JASWANT SINGH, J By filing the present revision petition under Article 227 of the Constitution, plaintiffs-petitioners have laid challenge to the impugned judgment dated 6.8.2011 passed by learned Additional District Judge, Mewat (Nuh) whereby an appeal filed by the defendant No.2-respondent No.1 against the judgment dated 10.12.2010 passed by learned Addl. Civil Judge (Sr. Division), Ferozepur Jhirka dismissing the application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 12.11.2005, has been allowed.
Brief facts of the case are that plaintiff-petitioners filed Civil Suit No.218 dated 13.8.2004 for specific performance against the defendants-respondents on the basis of agreement to sell dated 17.5.2000 regarding agricultural land as described in para No.1 of the plaint for a sale consideration of Rs.1,47,000/-. Notice of the suit was given to the defendants-respondents but they did not joint proceedings and consequently they were proceeded ex parte by the learned trial Court. Plaintiff-petitioners led their oral as well as documentary C.R.No.6450 of 2011 #2# evidence to prove their case and ultimately the suit was decreed by the learned trial Court vide judgment and decree dated 12.11.2005. An application No.54 of 2005 dated 16.12.2005 under Order 9 Rule 13 CPC was filed for setting aside the ex parte judgment and decree dated 12.11.2005. Upon notice, the same was opposed by the plaintiff- petitioners and after hearing both the sides, the said application was dismissed by learned Addl. Civil Judge (Sr. Division), Ferozepur Jhirka vide judgment dated 10.12.2010. Thereafter, on an appeal having been filed by defendant No.2-respondent No.1, the same was allowed by the learned appellate Court vide impugned judgment dated 6.8.2011, hence the present petition.
Learned counsel for the plaintiffs-petitioners argues that the impugned judgment is wholly erroneous and not sustainable in the eyes of law. It is argued that the defendant-respondents were duly served and rightly proceeded ex parte after publication in the Newspaper with malafide intention and thus the learned Appellate Court has gravely erred while observing that it cannot be deemed to be a sufficient service.
After hearing learned counsel for the petitioner and perusing the paper book, this Court does not find any merit in the present petition and the same deserves dismissal.
A bare perusal of the impugned judgment clearly shows that on the basis of pleadings of both the parties, learned trial Court framed as many as four issues and issue No.1 being material reads thus:
C.R.No.6450 of 2011 #3# "Whether judgment and decree dated 12.11.2005 is liable to be set aside?OPA"
From the reading of the impugned judgment, it is apparent that the civil suit was filed by the plaintiffs-petitioners on 13.8.2004 and the notice of the suit was issued for 3.9.2004. It is case of the plaintiffs-petitioners that the defendant-respondent No.1 Liaqat Ali received the summons from the Process Server-Krishan Lal (RW2) on 30.8.2004. On the other hand, while appearing as RW2, said Krishan Lal-Process Server categorically admitted in his cross examination that Liaqat Ali-respondent No.1 was not personally known to him and it was Puran-Chowkidar of the Village, who identified respondent No.1- Liaqat Ali but despite that said Krishan Lal did not get any endorsement/witness from the said Puran-Chowkidar. Thus the learned Appellate Court after taking into consideration the import of Order 5 Rule 16 and 18 CPC and keeping in view the judgment of this Court reported as Sukhbir Singh v. Mansa Ram, 1993 (3) RCR 435, has rightly held that RW2-Krishan Lal/Process Server faltered in the performance of his duties as a Process-Server as it was need of hour on his part to record the witness of Puran-Chowkidar of the Village in order to verify the identity of respondent No.1. The relevant observations recorded in para 14 of the judgment reads as under:
"14. Applying the said ruling to the facts and circumstances of the case and further taking into consideration the rules 16 and 18 of Order 5 CPC, I am of the considered opinion that facts and circumstances of this case clearly indicate that PW2 Krishan Lal Process Server faltered in the C.R.No.6450 of 2011 #4# performance of his duty as a process server beause as per his own version as RW2, he stated that at the time of effecting service upon the appellant, Puran Chowkidar was present with him, who identified the appellant but despite that he did not deem it necessary to get his witness and thus he failed to make a record of his identification on the summons. He has categorically stated in his cross examination that appellant was not personally known to him as it was Puran Chowkidar, who identified the appellant. Thus in my considered opinion it was need of hour on his part to record the witness of Chowkidar Puran of the village, in order to verify the identity of the appellant."
In Sukhbir Singh's case (supra) also, in a somewhat similar situation, the Process Server did not get attested the signature of defendant-Sukhbir Singh from any other person known to him or residing in the locality where the service was allegedly effected upon him and in those circumstances, the statement of Process Server was not found to be reliable and this Court came to the conclusion that the same amounted to the denial of valuable right of hearing and observed in para No.10 of the said judgment as under:
"After considering the rival submissions of the learned counsel for the parties, I am of the view that this revision petition merit acceptance. The main stay of the respondent in support of the ex parte order is the statement of Mahabir, process server. A careful perusal of the statement reveals that he did not know the petitioner earlier. None accompanied the process server nor the process server got attested the signature of Sukhbir Singh from any other person known to him or residing in the locality where the service has allegedly effected. In the absence of the same, it would be quite hazardous to rely C.R.No.6450 of 2011 #5# upon such a statement of the process server and thereby deny the petitioner valuable right of hearing. The process server has not performed his duties properly. The process server was duty bound to get him identified by a person known to him and also to record to the same effect in his report. Both these vital aspect are missing in his report Ex.RW2/1. Even in his statement before the Rent Controller, the process server has clearly admitted that he did not know Sukhbir Singh personally. In this way, the report of the process server cannot be deemed to be worthy of credence. The Rent Controller has, in fact, erred in relying upon such a report."
Keeping in view the law laid down by this Court in Sukhbir Singh's case (supra) and the provisions of Order 5 Rules 16 & 18 CPC, this Court is not inclined to interfere in the finding recorded by the learned first Appellate Court while exercising powers under Article 227 of the Constitution.
Dismissed.
October 20, 2011 ( JASWANT SINGH ) manoj JUDGE