Punjab-Haryana High Court
Ram Singh vs Bir Singh --Respondent on 7 December, 2009
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
C R No.6027of 2008 (O&M) 1
In the High Court for the States of Punjab and Haryana at Chandigarh.
Decided on December 07,2009.
Ram Singh -- Petitioner
vs.
Bir Singh --Respondent.
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Sudhanshu Makkar,Advocate, for the petitioner Mr.Parmod Parmar,Advocate,for the respondent.
Rakesh Kumar Jain, J: (Oral) This is a revision under Article 227 of the Constitution of India, for setting aside the order dated 26.9.2008 (Annexure P-4), passed by the learned District Judge, Bhiwani, reversing the order dated 16.2.2008 (Annexure P3) passed by learned Civil Judge (Junior Division) Bhiwani, whereby an application filed by the respondent under Order 9 Rule 13 of the Code of Civil Procedure,1908 (for short,'CPC') against ex-parte order dated 18.4.2003 (Annexure P2) and judgment and decree dated 06.9.2003 passed in Civil Suit No.112 of 2003 titled Ram Singh Vs. Bir Singh, for recovery of Rs.2,50,000/-, on the basis of pronote was dismissed.
In support of his argument, learned counsel for the petitioner C R No.6027of 2008 (O&M) 2 has basically referred to the findings recorded by the learned trial court in para No.12 which is reproduced below:-
"It is not in dispute that Civil suit No.112 dated 7.12.2002 titled as Ram Singh Versus Bir Singh was instituted by plaintiff/respondent on 7.12.2002 on which date notice of the suit was ordered to be issued to defendant/petitioner for 18.1.2003. Copy of summons issued on 7.12.2002 is the part of the record on the reverse side of which three reports of Process Server Ex.RW3/A, Ex.RW3/B and Ex. RW3/C are available. As per reports dated 17.12.2002 and 26.12.2002 Ex. RW3/A and Ex RW3/B respectively, defendant/petitioner Bir Singh was not available at the given address. The Process Server was told that Bir Singh was out of station. Process Server again visited the house of defendant/petitioner on 8.1.2003 alongwith Amilal Chowkidar. As per report Ex. RW3/C, on the said date as well, he was not present there but his mother was available who disclosed that Bir Singh had gone to Delhi. It was reported by the Process Server that defendant was avoiding service deliberately and his mother refused to receive the summons. However, on refusal of defendant Bir Singh's mother to accept the summons, Process Server did not affix a copy of summons and a copy of the plaint on a conspicuous portion of the house of the defendant. As such, it was not proper service being contrary to provision of Order 5 Rule 17 CPC. It appears that due to improper report, the then learned Civil Judge (Junior Division) Siwani did not reply upon the report Ex RW3/C and on 24.1.2003 issued fresh summons for service upon defendant/petitioner Bir Singh for 7.3.2003. It is pertinent to mention here that though the summons were ordered to be issued vide order dated C R No.6027of 2008 (O&M) 3 7.12.2002 for 18.1.2003, however, on 11.1.2003, case file was taken up by the learned Presiding Officer as he was on leave on 17.1.2003 and 18.1.2003, and matter was adjourned to 7.3.2003. On 7.3.2003, summons issued on 24.1.2003, was received back with the report of Roohposh. On the reverse side of summons issued on 24.1.2003, two reports Ex. RW3/D and Ex. RW2/A are available. As per report Ex. RW3/D, Process Server had visited the house of defendant/petitioner on 10.2.2003 but again he was not found there. His mother was there who told the Process Server that the defendant was out of station. At that time also, Process Server was accompanied by Amilal Chowkidar. Perusal of report Ex. RW3/A further shows that on 19.2.2003, Process Server Roshan Lal again visited the house of defendant/petitioner along-with Amilal, Chowkidar and when he enquired about Bir Singh son of Beghraj then his sister who was present there told him that Bir Singh was present inside the house. However, when he came to know about arrival of Process Server, then he disappeared, whereupon a copy each of summons and the plaint were affixed outside the house of defendant/ petitioner. In view of the report Ex. RW2/A learned Presiding Officer vide order dated 7.3.2003, ordered service upon defendant/petitioner through Munadi for 18.4.2003. Munadi was conducted on 25.3.2003 as regards which report is Ex. RW1/A. Munadi was done by Mahender Singh son of Amilal Chowkidar and a copy thereof was affixed at a public place in the village. Munadi was conducted in the presence of witness Bir Singh son of Chandgi Ram and Process Server Nand Kishore Sharma. Relying upon this report, learned Presiding Officer vide order dated 18.4.2003 proceeded defendant/petitioner ex-parte as C R No.6027of 2008 (O&M) 4 despite calling the case several times, none appeared in Court on behalf of defendant/petitioner. Case was fixed for ex-parte evidence on 1.8.2003 on which date evidence of plaintiff was recorded and case was adjourned to 22.8.2003 for consideration. Thereafter, on 5.9.2003 arguments were heard and suit filed by plaintiff/respondent was decreed vide judgment and decree dated 06.9.2003".
It is submitted that the respondent has been evading personal service and has thus been served by way of substituted service through munadi and has rightly been proceeded against ex-parte. Therefore, there was no occasion for the lower Appellate Court to reverse the order of proceeding ex-parte and also the judgment and decree dated 06.9.2003.
I have considered the arguments raised by learned counsel for the petitioner and have perused the record.
The findings recorded by the learned lower Appellate Court are in para Nos. 9 and 10 which are reproduced below:-
" However, it cannot be disputed that service can be effected upon adult member of a family. It is also admitted that ex-parte proceedings cannot be set aside just on the ground of irregularity in service of summons, if defendant was aware of proceedings pending against him. But, when it appears that neither service was effected properly nor he was aware about pendency of suit, then the same can be set aside. If we scrutinize available on file, it will be clear that version of appellant/ defendant is more believable. It was stated by RW-2 that sister of appellant/applicant told that he was at C R No.6027of 2008 (O&M) 5 house. But, he did not tell name of his sister, but as per his statement, Ami Lal 'Chowkidar' , was with him. As being co- villager, he must have been knowing name of his sister. When Ami Lal entered witness box as RW-5, he did not tell name of his sister. It is not told by them that how old she was. Moreover, RW-2 Roshan Lal P.S. Stated that only Ami Lal was 'Chowkidar' of village Morkhan whereas P.S. Nand Kishore got 'munadi' effected through Mahender 'Chowkidar'. When Ami Lal was 'Chowkidar', then how RW-4 Mahender effected 'munadi' is no where explained. It has nowhere come on file that both of them are 'Chowkidar' of that village.
Furthermore, it was stated by RW-4 that he was not aware what was mentioned in his affidavit Ex. RW-4/A. It was admitted by him in cross examination that said affidavit was got typed by Ram Singh. It was not read over to him and only his thumb impressions were obtained. In such a situation, no reliance can be placed upon that affidavit. Had he stated that affidavit was got typed as per facts told by him and that same was read over to him then it could have been a different matter. It is case of applicant that due to draught in village, he had gone to village Kasni Kalan for earnings. His sister was residing there. When Ami Lal ' Chowkidar' entered witness box as RW-5, it was admitted by him that there was draught in their village since 08 to 10 years. When plaintiff Ram Singh entered witness box as RW-6, it was admitted by him in cross examination that there was draught in their C R No.6027of 2008 (O&M) 6 village since so many years. In such a situation, it was but natural for applicant to go to other village for earnings. It is well settled proposition of law that in civil matter preponderance of probability is to be looked into. When averments raised by applicant are corroborated by defence evidence to this extent, it can be safely presumed that he was not in village on aforesaid dates and ex-parte proceedings initiated against him on 18.4.2003 are liable to be set aside"
Learned trial Court has referred to report Ex. RW3/A dated 19.2.2003 prepared by Roshan Lal, Process Server to the effect that he had gone to the house of the respondent with Ami Lal, 'Chowkidar and enquired about him. At that time, his sister who was present told that the respondent was present inside the house but as he came to know about arrival of Process Server, he had disappeared. Thus, a copy of summon and plaint was affixed outside the house of the respondent and vide order dated 07.3.2003 he was served through munadi.
Learned Appellate Court has found as a matter of fact that when RW-2 had appeared, he could not tell name of the sister. When Ami Lal, 'Chowkidar' had appeared as RW-5 he too could not tell the name of the sister. It was also observed that though Ami Lal is the only 'Chowkidar' of the village,but munadi has been effected through Mahender Chowkidar which is nowhere explained by the respondent who had appeared as RW-4 who had stated that due to draught in the village, he had gone out of the village for earnings. Fact of draught has been admitted by RW-5 Ami Lal, 'Chowkidar'. All these facts clearly indicate that the respondent was never C R No.6027of 2008 (O&M) 7 served personally and even munadi has been conducted by a person who was not authorised. Moreover, it is a case of recovery of money on the basis of pronote in which the respondent should have been given appropriate opportunity to contest the suit.
Keeping in view the totality of circumstances, I do not find any error/ material irregularity in the order of the learned appellate Court. Hence, this revision is hereby dismissed. No costs.
December 07,2009 (Rakesh Kumar Jain) RR Judge