Punjab-Haryana High Court
Dalip Singh Alias Daler Singh Alias ... vs Narain Singh (Died) Through His L.Rs. ... on 14 January, 2000
Equivalent citations: (2000)125PLR69
Author: M.L. Singhal
Bench: M.L. Singhal
ORDER M.L. Singhal, J.
1. This is civil revision filed by Dalip Singh and others against Narain Singh and others whereby they have prayed for the setting aside of the order dated 10.11.1983 passed by the District Judge, Amritsar and re-hearing of the appeal on merits.
2. Facts: There was one Budh Singh. He was owner of land measuring 119 Kanals 9 Marias in the area of village Thathian Mahantan, Tehsil Tarn Taran and 35 Kanals 16 Marias in Village Darga Pur Sharki, Tehsil Tarn Taran. He had three sons Surain Singh, Hazara Singh and Narain Singh. He had daughters named Guro, Surain Kaur and wife Ishar Kaur. He died leaving behind Ishwar Kaur, Surain Kaur and Guro etc. Guro and Surain Kaur died issue-less: Ishwar Kaur also died. Surain Singh had a daughter named Jeeto and widow Kishan Kaur. Narain Singh instituted suit for declaration that he was sole owner and in possession of the land measuring 119 Kanals 9 Marias plus 35 Kanals 16 Marias against Jeeto daughter of Kishan Kaur wife of Surain Singh and Dilbagh Singh alias Dilbir Singh, Charan Kaur, Santo alias Sant Kaur daughters of Hazara Singh. It was alleged in the plaint that Budh Singh had executed a valid registered Will in favour of Narain Singh and Hazara Singh on 15.10.1959, On the basis of the said Will, plaintiff alone became, the sole owner of the property left by Budh Singh as Hazara Singh had pre-deceased Budh Singh.
3. In the previous suit in which Narain Singh was plaintiff, which related to some other property of Budh Singh, plaintiff Narain Singh set up the aforesaid registered Will dated 15.10.1959 executed by Budh Singh in favour of Narain Singh and Hazara Singh, which was up-held by Sub Judge, 1st Class, Tarn Taran and the suit was decreed on the finding that Narain Singh was the sole heir of Budh Singh on the basis of that Will. That finding is final between the parties.
4. Narain Singh plaintiffs suit was dismissed by Shri J.S. Korey, Sub Judge, 1st Class, vide order dated 13.1.1982. In the suit there was no appearance so far as Jeeto etc. defendants are concerned. They were proceeded ex parte.
5. Aggrieved, Narain Singh plaintiff went in appeal. Appeal was accepted ex parte by the Shri ML. Merchea, District Judge, Amritsar Vide order dated 11.8.1982 and the suit of Narain Singh-plaintiff was decreed for declaration that he was sole owner and in possession of the land measuring 119 Kanals 9 Marlas and 35 Kanals and 16 Marias as detailed in the heading of the plaint in view of the Will set up by him.
6. Dilbagh Singh alias Dalbir Singh and others defendants moved application under Order 41 Rule 21 of the Code of Civil Procedure to the District Judge, Amritsar whereby they prayed for the setting aside of me ex parte decree passed against them and the re-hearing of the appeal on merits. It was alleged in that application that no notice was issued to them by the appellate Court for their service in the appeal, rather vide order dated 14.6.1982, learned appellate Court had dispensed with the service on them saying that as they were ex parte at the trial, they need not be served; in appeal. They (Dilbagh Singh etc.) did not have any knowledge of the institution of the appeal. They came to know of the appellate Court's decree, dated 11.8.1982 when Narain Singh filed certified copies of the, decree dated 11.8.1982 in the Court of Shri M.S. Walia, Sub-Judge, Tarn Taran in case Narain Singh v. Dalel Singh. It was alleged that they are resident of Medan, North Smatra, Indonesia. They are not, residing in village Thathian Mahantan and Narain Singh had given their wrong addresses, got summons and proclamation issued on the wrong addresses i.e. village Thathian Mahantan, Distt. Amritsar. In fact, they had no knowledge of the filing of the suit and appeal by Narain Singh-plaintiff against them. They (Dilbagh Singh etc.) did not appear when the appeal was called on for hearing as they were not duly served. Equity, justice and law require that before passing any order against them they should have been given sufficient opportunity to support the dismissal of the suit by the trial. Court. Their non-appearance, on the date of hearing of the appeal, was not intentional but bonafide due to the lack of knowledge of the pendency of the appeal by Narain Singh.
7. Vide order dated 10.11.1983 Shri M.L. Merchea, District Judge, Amritsar, declined this application and refused to allow Dilbagh Singh alias Daler Singh etc. the rehearing of the appeal.
8. In the suit filed by Narain Singh-plaintiff, Smt. Jeeto was described as resident of village Gadania, Tehsil and Distt. Lakhimpur, U.P. while Dilbagh Singh alias Dalbir Singh etc. sons and daughters of Hazara Singh are shown to be resident of village Thathian Mahantan, Tehsil Tarn Taran, Distt. Amritsar.
9. In the application made under Order 41 Rule 21 of the Code of Civil Procedure by Dilbagh Singh etc. for the setting aside: of the ex parte decree and the grant of rehearing of the appeal on merits, they have alleged that they are residents of Medan, North Smatra, Indonesia and when they were residing in Indonesia, any attempt to serve them in village Thathian Mahantan was futile and absolutely uncalled for and in conducive to equity, justice and fair play.
10. In the suit, there is an order recorded on 26.9.1980 which reads as follows:
"Summons received back without service . Defendants are not residing in village Thathian Mahantan. Their correct address and PF be filed for 20.10.1980 alongwith registered covers."
11. There is nothing on the record of the suit file to suggest that their correct addresses was furnished and registered envelops Were sent to them at the said address. Vide order dated 14.1.1981, they were ordered to be served through proclamation/publication. They were proceeded ex parte because of their failure to appear before the Court despite proclamation and publication. How could proclamation/publication be of any effect when they were not residing in village Thathian Mahantan. Court should have insisted upon the furnishing of their correct addresses by the plaintiff Narain Singh. Court should have made effort to serve them at their addresses.
12. District Judge should not have proceeded mechanically and observed that as there was no appearance for them in the trial Court, they need not be served in appeal. He should have gone through the Zimini orders recorded by the trial in the suit file to see whether the defendants had been proceeded ex parte justifiably.
13. Narain Singh set up a registered Will dated 15.10.1959 said to have been executed by Budh Singh in his favour and in favour of his brother Hazara Singh bequeathing his property to them, to the exclusion of all his other heirs. Plaintiffs case was that Will becarne inoperative so far as Hazara Singh was concerned as Hazara Singh had died during the life time of Budh Singh arid when Budh Singh died, he was the sole legatee left and therefore the inheritance of Budh Singh devolved upon him. Narain Singh did not examine any evidence to substantiate the Will as according to him, Chet Singh scribe of the Will was dead. Its attesting witnesses Tehal Singh Lambardar and Fateh Singh were also dead. Reliance was placed on the certified copy of the Will obtained from the office of the Sub Registrar by Narain Singh. Sh. J.S. Korey, Sub Judge, 1st Class, Tarn Taran refused to give effect to the Will saying that it had not been proved in accordance with the mode laid down in Section 63 of the Indian Succession Act. read with Section 68 of the Indian Evidence Act.
14. In the earlier suit filed by Narain Singh against Tej Kaur daughter of Hazara Singh son of Budh Singh through legal representatives Charno etc. and Jeeto daughter of Kishan Kaur wife of Surain Singh for declaration that he was owner and in possession of the land bearing Khasra Nos. 12/19/2, 22/1, 12/22/2, 23, 15/3/2 as entered in Jamabandi for the year, 1975-76, situated in village Thathian Mahantan and land bearing Khasra No.7/16 as recorded in Jamabandi for the year 1976-77 situated in village Dargapur Sharki, Teh. Tarn Taran and they i.e. Tej Kaur etc. have no right, title or interest therein, with perpetual injunction by way of consequential relief restraining them from dispossessing him there from forcibly, Will dated 15.10.1959 said to have been executed by Budh Singh in his favour and in favour of Hazara Singh was relied upon. That suit was decreed ex parte by Shri Harjit Singh, Sub-Judge, 1st Class, Tarn Taran vide order dated 20.4.1979. In that suit also Narain Singh did not adduce any evidence to prove the execution of that Will. Only certified copy of the Will was produced which was believed saying that the copy of the Will is admissible as that is a public document. Learned, District Judge while accepting the appeal ex parte believed the Will to have been executed by Budh Singh on the basis of the endorsement of the Sub Registrar on the reverse of the registered Will saying that this endorsement speaks volume about its execution. Endorsement on Will by the Sub Registrar was not per se admissible into evidence. Endorsement by the Sub Registrar on the Will was a matter of proof. Plaintiff-Narain Singh should have led some evidence to prove that the Will had been executed by Budh Singh when he was in sound disposing mind and the Will represented in true colours what Budh Singh wanted to do. The fact that the scribe and the attesting witnesses were no more in the World when the Will came in issue before the Court, was a circumstance which could, of course have been taken into account by the Court but that circumstances did not dispense with the proof of the endorsement on the Will.
15. It is true that the Will was directly and substantially in issue in the previous suit between Narain Singh and Tej Kaur etc. but it is equally true that decision, on Will would operate as res judicata in the subsequent suit between them. In this case, however, there was no decision by the Court so far as that Will was concerned so that it could operate as res judicata between the parties in the subsequent suit.
16. Section 11 of the Code of Civil Procedure reads as follows:-
"Res judicata-
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim. Litigating under, the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
17. In that suit there was no decision by the Court to the effect that the said Will had been executed by Budh Singh while in sound disposing mind in favour of Narain Singh and Hazara Singh to the exclusion of all other heirs.
18. In this case, the petitioners had been crying hoarse and they had never been served in the suit. They had not been residing in village Thathian Mahantan or Gadania but they had been residing all along in Medan North Smatra, Indonesia and they came to know of the ex parte decree because of the production of certified copies of the orders by Narain Singh in the Court of Sh. M.S. Walia, Sub Judge, 1st Class, Tarn Taran on 5.1.1983.
19. There was no basis for the trial Court to have proceeded ex parte against Smt. Jeeto etc, when their correct addresses do not appear to have been furnished, to the Court alongwith registered covers. After it had been reported by the process server that they are not residing in village Thathian Mahantan, plaintiff should have found out their correct addresses and furnished registered covers so that Court could issue registered covers on those addresses.
20. Appellate decree was passed on 11.8.1982. Application under Order 41 Rule 21 of the Code of Civil Procedure for its setting aside and the re-hearing of the appeal was made on 22.1.1983.
21. Order 41, Rule 14 Sub Clause (1) as amended reads as under:-
"Publication and service of notice of day far hearing appeal-
(1) Notice of the day fixed under Rule 12 shall be affixed in the Appellate Court house and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice."
22. In this case appellate Court would not have dispensed with service on Smt. Jeeto etc. if it had gone through the Zimini orders recorded in the suit file which eloquently demonstrate that there was no effort at all to serve personally Jeeto etc.
23. Rules of procedure are mere hand maid of justice. At the alter of procedure, substantial justice should not have been sacrificed by the District Judge. District Judge should have set aside the ex parte decree and posted the appeal for re-hearing when the heirs of Hazara Singh had been crying hoarse that they had all along been residing in Indonesia and have never resided in Thathian Mahantan in Teh. Tarn Taran.
24. So, this revision is accepted and the impugned order dated 11.8.1982 passed by the District Judge, Amritsar accepting the appeal of Narain Singh Plaintiff ex parte is set aside. Similarly, order dated 10.11.1983 passed by the District Judge, Amritsar is also set aside and the District Judge, Amritsar is directed to re-hear the appeal on merits after affording both the parties opportunity of being heard.