Ronak Singh vs Nand Lal on 20 August, 2009

C.R. No. 6379 of 2006                                                          1


IN THE PUNJAB AND HARYANA HIGH COURT AT
              CHANDIGARH

                               C.R. No. 6379 of 2006 (O&M)
                               Date of Decision : 20.8.2009

Ronak Singh
                                                            .......... Petitioner
                               Versus

Nand Lal
                                                             ...... Respondent

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA

Present :    Mr. V.K. Jindal, Advocate
             for the petitioner.

             Mr.Gaurav Singla, Advocate
             for Mr. Rajnish Gupta, Advocate
             for the respondent.

                   ****

VINOD K. SHARMA, J. (ORAL)

This revision petition under Article 227 of the Constitution of

India is directed against the order dated 6.11.2006, passed by the learned

Addl. District Judge, Kaithal vide which ex parte proceedings and decree

against the respondent / defendant, have been ordered to be set side.

The plaintiff filed a suit for permanent injunction against the

defendant / respondent in which the defendant / respondent was proceeded

against ex parte on 11.5.1989. The ex parte decree was thereafter passed on

22.7.1992.

It was on 19.7.2005, that an application was moved for setting

aside ex parte decree on the plea, that the respondent / defendant came to
C.R. No. 6379 of 2006 2

know about the ex parte decree on 13.6.2005.

The learned trial Court did not accept the version of the

defendant and came to the conclusion, that the respondent / defendant was

served through munadi, therefore, there was a valid service and there was no

explanation forthcoming for delay in moving the application.

The learned lower appellate Court, however, reversed the

finding of the learned trial Court by holding, that the service on the

defendant was duly effected especially for the reason that in spite of report

of refusal the Court did not proceed the defendant against ex parte, thus, the

report was not believed, whereas the report of the munadi was believed

though it was mentioned therein that Nand Lal, was staying at Karnal. The

said report could not be accepted, in fact, the defendant was not served in

the suit.

The learned counsel for the petitioner contended, that the

impugned order cannot be sustained, as it is outcome of misreading of

evidence.

The contention of the learned counsel for the petitioner was,

that statement of Process Server that Nand Lal was residing at Karnal was

merely a slip of tongue / typographical mistake, as it was not even the case

of the defendant / respondent that he was resident of Karnal, rather it was

admitted case of both the parties that the respondent was resident of Pundri.

However, it is not in dispute, that for some time the defendant had shifted to

Delhi. Once it was proved on record, that the defendant had shifted to Delhi

the learned trial Court could not have accepted the service by munadi, as on
C.R. No. 6379 of 2006 3

the date of munadi defendant was admittedly not residing at Pundri. Even

otherwise no prejudice has been caused to the petitioner as by setting aside

the ex parte decree, the parties have been granted liberty to contest the claim

on merit.

No ground is made out to exercise the jurisdiction under Article

227 of the Constitution of India to interfere with the impugned order.

However, keeping in view the fact that the suit was filed in the

year 1989, the learned trial Court is directed to expedite the hearing of the

case.

20.8.2009                                        ( VINOD K. SHARMA )
  'sp'                                                JUDGE