Punjab-Haryana High Court
Shyam Singh And Others vs Jagrup Lal on 22 September, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CR No.6433 of 2014
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.6433 of 2014
Date of Decision: 22.09.2014
Shyam Singh and others ..... Petitioners
Versus
Jagrup Lal ... Respondent
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Sunil Kumar,Advocate,
for the petitioners.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
In this order, the parties are referred to by their original positions in the suit. Defendants have brought this revision petition against the order dated February 07, 2014 passed by the learned Additional Civil Judge (Senior Division), Guhla whereby the application filed by them for setting aside the ex parte judgment and decree dated December 03, 1997 under Order 9 Rule 13 CPC has been dismissed.
The brief facts are that the plaintiff filed a suit for declaration to the effect that he is owner in possession of the suit land measuring 22 Kanals 14 Marlas representing 454/804 share out of total land comprising 40 Kanals 4 Marlas. The claim was based on having acquired rights of ownership by prescription as the suit land was mortgaged with possession by the predecessor-in-interest of the defendant Hardwari and Udhe sons of Harjas in favour of Chuha Mal son of Ruldu Mal, predecessor-in-interest of Ram Sarup son of Ajudhiya as per mutation No.243 dated May 30, 1899. MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.6433 of 2014 -2- The successors-in-interest of the original mortgagee sold their rights of mortgage with possession in favour of the plaintiff vide three registered sale deeds dated June 07, 1986, July 05, 1989 and May 13, 1992.
The case contra set up was that Defendant No.4 is the sister of defendant Nos.1 to 3 and she is married at Village Maluaa, District Ambala prior to the filing of the suit but the plaintiff arrayed defendant No.4 at the address of Village Bhuna in the plaint and by playing fraud succeeded in procuring a false report of affixation of summons on the house of defendant Nos1 to 3. The report of munadi been effected upon defendant Nos.1 to 3 was obtained. Defendant Nos.1 to 3 were ex parte in the trial Court. The defendant No.4 was served through munadi and was proceeded ex parte on February 25, 1995 and that is how the decree came to be passed on December 03, 1997.
It is the case of the contesting defendants, that they were never served in the suit and were not aware of the ex parte decree and came to know of it on May 01, 2009 when they visited the office of Halqa Patwari for obtaining copies of Jamabandi of the suit land. On gaining knowledge of the ex parte decree they filed an application under Order 9 Rule 13 CPC on June 06, 2009 for setting aside the ex parte judgment and decree which has been dismissed giving rise to the present petition.
The application was contested by the plaintiff by filing a reply raising preliminary objections as to the maintainability of the application and of running out of the period of limitation for such an application even from the date of alleged knowledge of the ex parte decree. The plaintiff is protected by registered sale deeds of 1986, 1989 and 1992 and has been in MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.6433 of 2014 -3- possession since then having purchased the rights of the mortgagee. The land has been mutated in terms of the decree by an order of sanction dated June 04, 1999 bearing mutation No.2834. Registration deeds are public documents and serve as notice to the world at large. The application has been filed after 12 years from the decree. The suit was filed on July 31, 1992.
Defendant Nos.1 to 3 evaded service and were served through munadi. The address was properly given and the name of the father of defendant No.4 (petitioner) Rai Singh son of Nagar was correctly shown. Defendant No.4 is the sister of defendant Nos.1 to 3 and is alleged by the plaintiff to be living at Village Bhuna, Tehsil Guhla and that was the address given in the application under Order 9 Rule 13 CPC. The plaintiff objected that there was delay of 33 days in filing the application. In the affidavit filed by way of evidence presented by the defendants the date of knowledge has been mentioned as April 01, 2009 which later was sought to be improved to be May 01, 2009 to bring the application within limitation. Therefore, the learned trial Court has reasoned that the stand of the applicant has not been proved on record. In reaching this conclusion, the learned trial Court has relied on the ruling of the Supreme Court in Sunil Poddar and others vs. Bank of India, AIR 2008 (2) SCC 328; AIR 2008 SC 1006 and particularly the observations made in para.19 of the report:-
"19. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and
(ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.6433 of 2014 -4- an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff's claim, he cannot put forward a ground of non service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order IX of the Code. Since the said provision applies to Debt Recovery Tribunals and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the plaintiff-
bank and on that ground, ex parte order deserves to be set aside."
On these premises, the learned trial Court has held that the applicants have failed to prove that the judgment and decree came to the knowledge only once they visited the revenue office for obtaining the documents. The circumstances of the case infact reveal that they had knowledge of the case even during its pendency. The learned trial court has fortified her conclusion with the finding in support that the applicant suppressed true facts as regards the date of knowledge and therefore, there is no question of condonation of delay of 33 days in filing the present petition. In this manner, findings on issue No.1 have gone against the applicants and in favour of the plaintiff.
It is not for this Court in proceedings under Article 227 of the Constitution of India to disturb the judicial discretion exercised by the learned trial Court for good and sufficient reason and to substitute it. If there is no error apparent on the face of the order or apparent from record, interference in this case is not warranted. The plaintiff has enjoyed MANJU the 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.6433 of 2014 -5- uninterrupted fruit of the decree for a sufficiently long time and at least since May 13, 1992 when the last of the three sale deeds were registered in his favour.
I may, however, note that the petitioners have relied on the decision of this Court in Pritam Singh vs. Raj Kumar, 2013(4) RCR (Civil) 126 to support their case for re-opening of the decree for the reason that there can be no presumption of service where the mandatory provisions laid down for effecting service were not complied with. This Court held that the provisions of Section 114 of the Evidence Act, 1872 have to give way to the mandatory provisions prescribed for a specific purpose. This was a case where report of the process server earlier given in writing was that person to be served the court summons was not found residing at the given address. There is no such report in this case and, therefore, the ruling relied on is distinguishable on facts. The learned trial Court has gone by a cumulative reading of the entire case and the impact it has had on her to hold against the applicants and decline the application for setting aside the ex parte decree. The defendants had sufficient time to appear and answer the claim of the plaintiff. Such a major event in the life of a family is not easily forgotten for them not to take steps within reasonable time to vindicate their rights in court. It is not the case set up by the defendant No 4 that she had no truck with her sisters who were co-defendants ex parte and have remained so. Mere irregularity in service of summons would not help the applicants served by munadi and proceeded ex parte nineteen years ago on February 25, 1995 with an application filed just short of 12 years from the date of decree.
MANJU2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.6433 of 2014 -6-
For the foregoing reasons, the present petition is found without merit and is ordered to stand dismissed.
(RAJIV NARAIN RAINA) 22.09.2014 JUDGE manju MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh