Punjab-Haryana High Court
Lilu Ram vs Mangtu Ram & Others on 4 January, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
CR No.5464 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CIVIL REVISION NO.5464 OF 2010
DATE OF DECISION: JANUARY 04, 2012
Lilu Ram
.... Petitioner
Versus
Mangtu Ram & others
.... Respondents
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
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PRESENT: Mr. Sudhanshu Makkar, Advocate for the petitioner.
Mr. Yashwinder Paul Singh, Advocate for respondent No.1.
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L.N. MITTAL, J. (ORAL)
Lilu Ram defendant No.1 has filed instant civil revision petition under Article 227 of the Constitution of India.
Respondent No.1-plaintiff Mangtu Ram filed suit against petitioner-defendant No-1 and his three sons defendants No.2 to 4/proforma respondents No.2 to 4 herein. In that suit, defendants were proceeded ex parte vide order dated 23.08.1999 Annexure P-1 since they failed to appear despite substituted service by way of munadi. The suit was decreed ex parte vide judgment and decree dated 10.06.2003 Annexure P-2.
Defendants filed application on 01.12.2003 under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure (in short, CPC) for setting aside order Annexure P-1 as well as ex parte judgment and decree Annexure P-2 alleging that they were never served in the suit and they learnt of the ex parte judgment and decree on 24.11.2003 only. CR No.5464 of 2010 -2-
Plaintiff in his reply controverted the stand of the defendants and alleged that the defendants refused to receive the summons in the suit and they were then served by munadi and were rightly proceeded ex parte.
Learned Additional Civil Judge (Senior Division), Bhiwani vide impugned judgment dated 06.02.2008 Annexure P-3 dismissed the aforesaid application of defendants. First appeal preferred by defendants No.1, 2 and 4 has been dismissed by learned District Judge, Bhiwani vide impugned judgment dated 13.01.2010 Annexure P-4. Feeling aggrieved, defendant No.1 only has filed the instant revision petition to challenge aforesaid judgments Annexure P-3 and Annexure P-4 of both the courts below.
I have heard learned counsel for the parties and perused the case file.
Judgment Annexure P-4 of the lower appellate court reveals that after the suit was instituted on 12.04.1999, summons were issued for 19.04.1999 but the summons could not be served as the summons were received by process server on 26.04.1999 i.e. after expiry of date of hearing. Summons were again issued in the suit for 15.05.1999 but were received back unserved because time was too short. Summons were then issued for 22.05.1999. For serving the same, process server visited the house of defendants on 20.05.1999, but on that day, defendants were not available at their house and the summons were returned unserved. The summons were not affixed at the house of the defendants nor effort was made to serve the summons on any other adult male member of the family. Thereafter, substituted service by munadi was ordered and after munadi was effected, defendants were proceeded ex parte vide order dated 23.08.1999 and the suit CR No.5464 of 2010 -3- was decreed ex parte vide judgment and decree dated 10.06.2003 Annexure P-
2. From the aforesaid sequence of events, it is manifest that the defendants were not properly served in the suit. Effort was made to serve them personally only once i.e. on 20.05.1999, for 22.05.1999, but they were not available at their house and therefore, summons could not be served and thereafter no efforts were made to serve the defendants personally. On the other hand, straightaway substituted service by munadi was ordered. However under Order 5 Rule 20 CPC, substituted service could be ordered only if the defendants were getting out of the way for the purpose of avoiding service or for any other reason, summons could not be served in the ordinary way. In the instant case, however, it cannot be said that defendants were avoiding service of summons or the summons could not be served in ordinary way. Effort was made only once when the defendants were not available at their house. Consequently, there was no ground for ordering substituted service by way of munadi. Accordingly, ex parte proceedings ordered against the defendants on the basis of substituted service by way of munadi, cannot be said to be proper service because merely by effecting munadi in the village, the defendants may not have become aware of the pendency of the suit.
Lower appellate Court negatived the plea of the defendants on the ground that Local Commissioner appointed by the trial Court in the suit had visited the spot on 14.05.1999 after serving notice, which was received by defendant No.3 Ramesh who was also present at the time of visit of the Local Commissioner at the spot. Consequently, it has been found by the lower appellate Court that defendants were aware of the pendency of the suit. CR No.5464 of 2010 -4-
Learned counsel for the appellant, however, contended that memo of presence prepared by Local Commissioner records presence of Ram Kumar, Municipal Councillor and one Manphul Singh only and bears their signatures only. The memo of presence has no reference to presence of either plaintiff or defendant No.3 Ramesh nor it bear their signatures. Presence of plaintiff and defendant No.3 has been mentioned in the report of the Local Commissioner but neither the report of the Local Commissioner nor the memo of presence bear signatures of plaintiff or defendant No.3.
As regards notice of Local Commissioner allegedly received by defendant No.3, perusal of certified photostat copy of the said notice, as shown by counsel for the appellant, reveals that the said notice mentioned the date of visit of Local Commissioner as 15.05.1999 at 3.00pm whereas the Local Commissioner in fact visited the spot on 14.05.1999 and notice issued to the plaintiff's counsel also mentioned the date of visit as 14.05.1999. Moreover, notice issued by the Local Commissioner to the defendants was not put to Ramesh defendant No.3 in his cross-examination when he appeared in the witness box. It was not put to him that he had received any such notice from the Local Commissioner. The Local Commissioner Mr. Sanjay Sheoran, Advocate has also not been examined to depict that the said notice had in fact been received by defendant No.3.
In view of the aforesaid, I am of the considered opinion that defendants have made out sufficient ground for setting aside ex parte proceedings and ex parte judgment and decree passed against them. They were not duly served in the suit. In fact, they were not served at all in the suit. Order of substituted service by munadi was also passed without any CR No.5464 of 2010 -5- justification. Plaintiff in his reply alleged that the defendants refused to accept the summons in the suit. However, there is not even a report to the effect that the defendants had refused to receive the summons. On the other hand, there is solitary report dated 20.05.1999 by the process server that the defendants were not found at their house. Consequently, the question of their refusal to accept the summons did not arise.
The aforesaid discussion leads to the only conclusion that there is sufficient ground for setting aside ex parte proceedings and ex parte judgment and decree against the defendants. Impugned judgments Annexure P-3 and Annexure P-4 of the Courts below are patently perverse and illegal and suffer from jurisdictional error because the Courts below failed to exercise the jurisdiction vested in them. Accordingly, the instant revision petition is allowed. Judgments Annexure P-3 and Annexure P-4 passed by the Courts below are set aside. Application moved by defendants for setting aside order of ex parte proceedings Annexure P-1 and ex parte judgment and decree Annexure P-2 is allowed. Order Annexure P-1 and ex parte judgment and decree Annexure P-2 are accordingly set aside. The suit is restored to the files of the trial Court. The suit shall be tried by the trial Court in accordance with law. Parties are directed to appear before the trial Court on 08.02.2012.
Since the suit is of the year 1999, the trial Court shall dispose of the suit as expeditiously as possible.
(L. N. MITTAL) JUDGE 04.01.2012 'raj'