Punjab-Haryana High Court
Gian Kaur vs Amrit Singh And Ors. on 15 April, 1996
Equivalent citations: (1996)113PLR447
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. Gian Kaur plaintiff-petitioner (hereinafter referred to as the petitioner) filed a suit for permanent injunction against Balwant Kaur, Sharanjit Kaur, Avtar Singh, Jaspreet Singh, giving their addresses as House No. 1122, Sector 20-B, Chandigarh and Amrit Singh giving his address as House No. 2274, Sector 21-B, Chandigarh, restraining them from alienating the suit land as described in the head note of the plaint or creating any sort of encumbrance over it.
2. The suit was filed in November, 1980 which was decreed ex-parte against the defendant-respondents (hereinafter referred to as the respondents) on 25.7.1981. On 20.8.1986, two sets of applications, one by Balwant Kaur and Avtar Singh etc. and the other by Amrit Singh were filed under Order 9 Rule 13 C.P.C. for setting aside ex parte decree dated 25.7.1981 in Civil Suit No. 705 of 4.11.1980 titled as Gian Kaur v. Balwant Kaur and Ors.. Both these applications were dismissed by the trial Court on 20.10.1989 against which two separate appeals were filed before the District Judge, Sangrur. Both the appeals were consolidated and disposed of together. The appeals were accepted, order of the trial Court was set aside, ex-parte decree was also set aside and the case was remanded back to the trial court for decision on merits. Aggrieved against the aforesaid decision of the District Judge, Sangrur, two revision petitions No. 940 and 2795 of 1994 have been filed by the petitioner which are being disposed of by this common order. Facts are taken from CR. No. 940 of 1994 titled Gian Kaur v. Amrit Singh and Ors..
3. Amrit Singh respondent in his application had pleaded that he was never served in the suit and he had no knowledge regarding pendency of the suit; that he came to know about the ex parte decree on 1.8.1986 when Prem Chand his tenants informed him that Gian Kaur widow of Harjit Singh was restraining him from raising construction of the roof of the shop which had fallen on the basis of the alleged decree. It was averred that address given in the suit was totally wrong and that at the relevant time he was posted as S.D.O. at Beas in P.W.D. (B & R) and he never received any summon or notice from the Court. Sharanjit Kaur and Avtar Singh etc. have alleged that they had no notice of the suit and the decree and that they came to know about the decree in question from Amrit Singh who was informed by his tenant Prem Chand about ten days prior to the filing of the application for setting aside the ex parte decree.
4. Gian Kaur petitioner contested the application for setting aside the exparte decree. She denied the allegations of the respondents by alleging that they had willfully absented themselves and intentionally did not put in appearance in Court. It was maintained by her that respondents were rightly proceeded against ex parte and the judgment and decree is valid. An objection has been taken on her behalf that application for setting aside ex parte decree was not filed within limitation. Trial Court framed the following issues:-
1. Whether the application is filed within time? OPA.
2. Whether there are sufficient grounds for setting aside the ex parte decree dated 25.7.198? OPA.
3. Relief.
5. Parties led their evidence on consideration of which issues No. l and were decided by the trial Court in favour of the petitioner resulting in dismissal of the application filed by the respondents for setting aside the exparte judgment and decree. Respondents filed appeals which were accepted. Present revision petition has been filed for setting aside the ex parte decree and remanding the case back to the trial Court for decision on merits.
6. Counsel for the parties have been heard.
7. The Civil suit was registered on 4.11.1980. Defendant-respondents were ordered to be summoned for 2.12.1980 on which date it was reported by the process serving agency that they were not served on the given addresses. Respondents were ordered to be summoned for 13.1.1991 on filing of process fee correct addresses and registered covers. As 13.1.1981 was declared holiday and respondents were then ordered to be summoned for 16.2.1981, on which date registered covers were received back undelivered with the report that the addresses given were not correct. On the report of the Ahlmad trial Court instead of insisting on giving of cor- rect addresses and effecting personal service on the respondents recorded its satisfaction that the respondents could not be served in the ordinary way and ordered that they be served through substituted service by publication in Punjabi news paper Chardi Kalan, Patiala, for 16.3.1981. Nobody appeared after publication of the notice. Trial Court proceeded against the respondents ex parte and ultimately on 25.7.1981 passed the ex parte decree.
8. Admittedly no news-paper in the name of Chardi Kalan is published at Ludhiana rather the same is published from Patiala. In the publication in Chardi Kalan addresses given of the respondents were the same as given in the plaint. Earlier report of the process serving agency was that the addresses given were not correct. Instead of giving correct addresses of the respondents and fresh process fee for effecting service, petitioner repeated the same addresses and thereafter notices were ordered to be served on the same addresses in the ordinary way as well as by registered covers. Registered covers sent by Sharanjit Kaur and Avtar Singh were returned with the Report that no house bearing No. 1122, Sector 20-B, Chandigarh, exists at Chandigarh. Amrit Singh at the relevant time was posted as S.D.O. at Beas in P.W.D.(B & R). Thus, the respondents were not properly served at any stage of the proceedings. Addresses given of the respondents were incorrect as per report of the process serving agency. Service by way of substituted means by giving the same incorrect addresses would be no service in the eyes of law. The satisfaction recorded by the trial Court that respondents could not be served through ordinary process was also not justified. There was no reason to order service through publication in news-paper.
9. From the above discussion, I am satisfied that order taking ex parte proceedings against the respondents was neither legal nor justified and the respondents were condemned unheard without affording due opportunity to them.
10. Counsel appearing for the petitioner vehemently argued that application for setting aside the exparte decree and order was filed after more than five years of the passing of the decree. I have already recorded a finding that respondents were never served in the proceedings. Amrit Singh has stated on oath that he came to know about the passing of the decree from his tenant Prem Chand when the tenant was restrained by Gian Kaur on the basis of the alleged ex parte decree from raising construction of the roof of the shop which had fallen. From the evidence on record it is clear that Amrit Singh had acquired the knowledge of the decree only on 1.8.1986 and he filed the application for setting aside the ex parte order within 30 days of the acquiring of the knowledge. Limitation for setting aside judgment and decree has to be taken from the date of knowledge. Taking that the respondents had acquired the knowledge of the decree in August, 1986, the application filed by the respondents are within limitation as provided under Article 123 of the Limitation Act 1963.
11. As a result of my discussion above, I find no merit in this revision petition which is dismissed with no order as to costs. Parties through their counsel are directed to appear before the trial Court on 16.5.1996.
12. Since the case pertains to the year 1980 trial Court is directed to proceed with the case expeditiously and try to dispose it of preferably within six months.