CR No. 5872 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.M. No. 21825-CII of 2007 and
CR No. 5872 of 2007 (O&M)
Date of Decision: 2.9.2009
Baldev Singh
....Petitioner.
Versus
Kulbir Singh
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. R.S. Chahal, Advocate for the petitioner.
Mr. S.S. Godara, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
C.M. No. 21825-CII of 2007
Allowed as prayed for.
C.R. No. 5872 of 2007
The petitioner-defendant No.2 in the instant revision has
impugned order dated 4.10.2005 passed by the trial court whereby an
application filed by him for setting aside the ex parte judgment and
decree dated 11.3.2002 was dismissed and also the order dated
4.10.2007 vide which, on appeal, that order was affirmed by the lower
appellate court.
The plaintiff-respondent had filed a suit for permanent
injunction claiming himself to be the owner in possession of the suit
CR No. 5872 of 2007 -2-
property on the basis of the sale deed dated 20.3.1995 which was
decreed by the trial court ex parte on 11.3.2002. Defendant No.2 then
filed an application for setting aside the ex parte judgment and decree
on the ground that he had no knowledge about the pendency of the suit
as he was never served.
The trial court on the application filed by the petitioner-
defendant No.2 for setting aside the ex parte judgment and decree
dated 11.3.2002 framed the following issues:-
“1. Whether the ex parte proceedings taken
against the applicant are illegal, baseless and
are liable to be set aside, as alleged in the
application? OPA
2. Whether the impugned order and decree dated
11.3.2002 is wrong against law and facts and
liable to be set aside as alleged in the
plaint?OPA
3. Relief.”
Issues No.1 and 2 being material for the decision of the
application were taken up together and on appreciation of the evidence
led by the parties, the trial court held that the ex parte proceedings and
the judgment and decree dated 11.3.2002 against defendant No.2 were
perfectly legal. Accordingly, the trial court vide order dated 4.10.2005
dismissed the said application. Feeling aggrieved, defendant No.2 took
the matter in appeal and the lower appellate court vide order dated
4.10.2007 affirmed the order passed by the trial court and dismissed the
appeal.
CR No. 5872 of 2007 -3-
I have heard the learned counsel for the parties and have
perused the file with their assistance.
On a query being put by the Court as to what was the right
of defendant No.2 in the suit property, learned counsel for the petitioner-
defendant No.2 submitted that he is claiming the right on the basis of
adverse possession. Learned counsel, however, submitted that the
findings recorded by the courts below on issues No. 1 and 2 were
erroneous and against the record and, thus, were liable to be set aside.
On the other hand, learned counsel for the plaintiff-
respondent submitted that both the courts on appreciation of the
evidence led by the parties concluded that there was no ground to set
aside the ex parte judgment and decree dated 11.3.2002 and, therefore,
the application filed by defendant No.2 in that regard was rightly
dismissed by the courts below.
The trial court while dismissing the application of the
petitioner vide order dated 4.10.2005, in paras 8 and 9 of its order,
observed as under:-
“8. From the perusal of the records of the case, it
is observed that the respondent/plaintiff Kulbir had
instituted civil suit No. 616 on 31.3.95 against Ram
Singh and Baldev Singh both sons of Tahal Singh.
As per order dated 31.3.95, it is observed that both
the defendants were ordered to be summoned on the
very first day. On 24.4.95, the summons of the
applicant/defendant No.2 were received back
improperly served and, therefore, he was ordered to
CR No. 5872 of 2007 -4-be summoned again for 14.6.95. On that day, his
summons were received back with the report that he
had refused to accept the same and, therefore, he
was ordered to be summoned by way of munadi for
12.10.95. The munadi was returned duly served but
no one came forward to contest the case on behalf of
the applicant and he was consequently proceeded
against ex parte. The matter was contested by
defendant No.1 and ultimately, the suit was decreed
in favour of the respondent/plaintiff vide judgment
and decree dated 11.3.2002.
9. The original summons are available on record
and it is observed that two defendants Ram Singh
and Baldev Singh are real brothers. That on the
summons for 24.4.95, it has been reported that when
Baldev was given the summons, he had refused to
accept the same and, therefore, a copy of the
summons along with the copy of the plaint had been
pasted on his residence. On the basis of this report,
fresh summons were ordered to be issued for
14.6.94. The summons were again received with the
report that his premises were found locked. Both
these reports have been attested by Sardul Singh,
Chowkidar and Pyare Lal, Chowkidar respectively.
Thereafter, the applicant was ordered to be
summoned through Munadi which has been received
CR No. 5872 of 2007 -5-back duly served for 12.10.95. Though no specific
order for issuance of a registered notice had been
issued, a registered notice has also been issued to
the applicant and the postal receipts are available on
record.
It is evident from the above returned summons
that the court had taken all proper measures to
ensure that the applicant was duly served. Service of
notice was effected upon the applicant not only by
means of summons, but also by beat of drum,
affixation as well as by registered notice. It is, thus,
obvious that the court was perfectly justified in
proceeding against ex parte against the applicant on
12.10.95.”
The order of the trial court on appeal had been upheld by
the lower appellate court.
In view of the above, no illegality or perversity could be
pointed out by the learned counsel for the petitioner-defendant No.2 in
the orders passed by the courts below which may warrant interference
by this Court in exercise of its jurisdiction under Article 227 of the
Constitution of India. Accordingly, there is no merit in this revision
petition and the same is hereby dismissed.
September 2, 2009 (AJAY KUMAR MITTAL) gbs JUDGE