CR No.1030 of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.1030 of 2005
Date of Decision: 21.8.2008
Mohinder Singh & Anr. ..Petitioners
Vs.
Mohinder Singh & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.B.R.Mahajan, Advocate,
for the petitioner.
Mr.R.K.Joshi, Advocate,
for respondent No.1.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
Vinod K.Sharma,J. (Oral)
This revision petition is directed against the order passed by
the learned courts below dismissing an application moved by the petitioners
under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure
CR No.1030 of 2005 2
for setting aside ex parte decree passed by in favour of the plaintiff-
respondent.
A suit titled as ‘Mohinder Singh Vs. Uttam Singh and others’
was decided by the court of learned Sub Judge II Class, Amritsar on
24.10.1985. Said judgment was ex parte.
The petitioner moved an application under Order 9 Rule 13 of
the Code on the ground that the petitioners were never served at any point
of time in those proceedings. It was the case of the petitioners that
summons were never served upon them and no registered covers were
tendered by the plaintiff-respondent. It was claimed that the plaintiff/
respondent in connivance with some of the officials of Process Serving
Agency managed to obtain a false report regarding their service with a view
to obtain ex parte judgment and decree against them. It was claimed that the
plaintiff-respondent also concealed material facts from the learned court for
getting the above said impugned decree at their back which is evident from
the fact that the plaintiff respondent did not get the decree executed till
9.10.1997 i.e. almost for a period of 12 years. During this long period the
decree was kept closely guarded secret and that is why the petitioners
never came to know about the same.
It was claimed by the petitioners that they have already set up
their factory at the disputed site and they are fulfiling their export
commitments by working therein for the last so many years. The petitioners
also raised loan from Punjab Financial Corporation. It was claimed that the
petitioners came to know about the said judgment and decree only on
22.8.1998 when they visited the court premises in connection with their
CR No.1030 of 2005 3
other cases and after making inquiries the application was immediately filed
on 29.8.1998. The petitioners also claimed that as per basic principle of law
rights of various parties should preferably be adjudicated on their merits
and technicalities of law should not come in the way of justice. It was also
claimed that the absence of the petitioners was neither intentional nor
willful and therefore, they should be allowed to defence the suit and ex
parte judgment and decree be set aside.
The application was supported by an affidavit.
The application was contested by the plaintiff-respondent, inter
alia, on the ground that the petition was not maintainable as the same was
barred by limitation. The allegations that the petitioners were not served
was also denied. It was claimed that both the petitioners and other
defendants were members of the same family who were duly served and did
not appear in the court despite service and therefore, they were rightly
proceeded ex parte. The contention that incorrect report was procured
with the connivance of Process Server was also denied. The respondent
plaintiff further claimed that the decree was well within the knowledge of
the petitioners in spite of which they kept on raising construction at the
spot simply by turning blind eye thereto. The averments that the petitioners
came to know about the said decree on 22.8.1998 was also denied.
The learned trial court on the pleadings of the parties framed
the following issues:-
“1. Whether the application is within limitation? OPA
2. Whether there are sufficient grounds to set aside ex
parte judgment and decree dated 24.10.85 passed by
CR No.1030 of 2005 4court of Sh,.Naginderjit Singh,the then Sub Judge II
Class, Amritsar? OPA
3. Relief.
The petitioners in support of their petition examined
Harbhajan Singh, Record Keeper as AW 1 and Mohinder Singh petitioner
himself appeared as AW 3. Thereafter evidence was closed. In defence
plaintiff-respondent Mohinder appearing as RW 1 and also examined
Mohinder Singh son of Bawa Singh as RW 2 and thereafter evidence was
closed.
Learned trial court decided both the issues against the
petitioners and consequently dismissed the petition.
The appeal filed by the petitioners also stands dismissed by the
learned Additional District Judge, Amritsar.
Mr.B.R.Mahajan, learned counsel appearing on behalf of the
petitioners contended that Uttam Singh was owner of land measuring 202
Kanals by way of sale deed dated 23.1.1980. 12 kanals of land was sold to
defendants No.3 to 5 in the suit and by way of another sale deed of the
same date 7 kanals 15 marlas of land was sold to defendant No.6. After
about 5 years of the execution of the sale deed the plaintiff respondent son
of Uttam Singh filed a suit to challenge the said sale deeds by claiming that
Uttam Singh was addict and a gambler and the sale deeds were made by
him without legal necessity.
Learned counsel for the petitioners referred to the proceedings
of the case which show that the case was put up before the learned trial
court on 22.2.1985 wen notice was issued to the defendants for 22.3.1985.
CR No.1030 of 2005 5Learned trial court on 22.3.1985 noticed that Registered Covers were not
issued due to deficiency of stamps. The plaintiff respondent was given 2
days’ time to make good the deficiency and the defendants thereafter were
ordered to be summoned for 3.5.1985 by way of registered covers. On
3.5.1985 it was noticed that A,.D were not received back and the case was
adjourned to 21.5.1985. On 21.5.1985 it was noticed that Tara Singh and
Mohinder Singh defendants No.6 and 5 were served but they were absent
and they were ordered to be proceeded ex parte. It was further observed that
registered covers for the other defendants were not received back and the
case was adjourned to 11.6.1985. On 11.6.1985 it was noticed that
Registered Covers were not received back and as the period of one month
had expired and accordingly their service was presumed. They were also
proceeded ex parte.
Ex parte proceedings were recorded and decree was passed on
24.10.1985.
The plaintiff respondent took no steps for execution of the said
decree for almost 12 years and then before 15 days prior to 12 years filed an
execution application for executing ex parte decree.
Learned counsel for the petitioners vehemently contended that
in the present case it has been proved on record that the petitioners were not
served for the reason that there was no material on record to show the
service except for the report of Ahlmad which was based on no material,
whatsoever.
Learned trial court in the impugned judgment recorded a
positive finding that the court could not find any material on record on the
CR No.1030 of 2005 6basis of which the report was made by Ahlmad. However, came to the
conclusion that it could not find any material on the basis of which the
report was submitted by the Ahlmad. However, failed to interfere with the
order on the ground that his predecessor had accepted the said report and
thus, the court had formed a subjective satisfaction about service.
The contention of Mr.B.R.Mahajan, learned counsel for the
petitioners, therefore, was that in view of this finding no other conclusion
but to hold that the petitioners were not served could have been arrived as
there was absolutely no material except the report of the Ahlmad which was
also based on no material. Learned counsel for the petitioners further
referred to the statement made by the plaintiff respondent wherein in cross-
examination he admitted that it is correct that the defendants-judgment
debtors resided at the address of Kala Name Shah, Dhab Wasti Ram from
1965 to 1985.
The contention of the learned counsel for the petitioners
therefore, is that in view of the admission made by the plaintiff it could
safely be said that in the present case there was no service on the petitioners
and the presumption that the petitioners stood served at the factory premises
therefore, could not be drawn as admittedly registered covers or A.Ds were
not received back nor any postal receipt showing despatch of Register
Cover placed on record.
Learned counsel for the petitioners further challenged the
findings on issue No.2 on the plea that the petitioners had led evidence to
show that the petitioners got knowledge of the ex parte decree only on
22.8.1998 and the present application was moved 7 days thereafter,
CR No.1030 of 2005 7therefore it was within limitation.
I find force in the contentions raised by the learned counsel for
the petitioners.
As per provisions to Order 5 Rule 19-A mode of service by
registered post is in addition to the service of summonsin the ordinary
course. It may be noticed that in the present case no steps were taken to
serve the petitioners by ordinary means and straightway the service was
ordered by way of substituted service. This court in the case of M/s Dooars
Transport Ltd. Vs. M/s Rattan Chand Harjas Rai Pvt. Ltd. & Anr.,
2006 (4) RCR (Civil) 449 has been pleased to lay down as under:-
“2. The facts which are not in dispute are that the suit for
recovery was filed on 19.4.1989 and on the same date notice
was issued for 28.7.1989. Though the order passed on
19.4.1989 shows that the Court has mentioned that the service
would be effected on filing of process fee, summons forms,
copies of plaint as well as registered A.D.Covers. However, it
is not in dispute that summons were sent only through
registered covers and even though there was no proof of
service on presumption of service ex parte proceedings were
taken against the petitioner and ex parte decree was passed on
29.10.1990. It was only on 22.3.1991 that the petitioner came
to know about the decree when Baillif approached them for the
execution of the same and on that very day the application was
moved for setting aside ex parte decree. However, learned
courts below by treating that defendants were served on the
CR No.1030 of 2005 8basis of presumption of service rejected the application. It is
not in dispute that in the year 1989 the court was bound to
serve the defendant in pursuance of Order 5 Rule 19-A of the
Code of Civil Procedure (for short the Code) which provided
that resort by registered post could be taken simultaneously
with personal service.
3. In the present case, there is clear violation of
Order 5 Rule 19-A of the Code which was held to be
mandatory by this Court in the case of Smt.Parmilesh Vs.
Vinod Kumar 1997 (1) PLR 178. Para 10 of the judgment
reads as under:
” From the trial Court’s record, it is evident that in the
matrimonial case on 3.1.1994 it was ordered that fresh
process fee with her correct address be submitted by
husband. There was no order that the notice be sent by
registered post. From that record it is evident that on
24.1.1994 the husband paid process fee with registered
cover; no order was obtained from the matrimonial Court
and notices were sent by registered post to the respondent;
no ordinary process was issued. Order 5 Rule 19-A provides
that “the Court shall, in addition to, and simultaneously with,
the issue of summons for service in the manner provided in
Rules 9 to 19 (both inclusive), also direct the summons to be
served by registered post, acknowledgment due….” Thus, it
is obvious that the notices sent by registered post were sent
CR No.1030 of 2005 9against the aforementioned provision without obtaining the
order from the matrimonial Court. Provisions of this Rule
19-A are mandatory. Legislature in its wisdom has cast a
duty on the Court to issue summons by ordinary process also
when he orders service through registered post. Non-
compliance of this rule is not a mere irregularity. As I have
mentioned above in this case notice was sent by registered
post without obtaining order from the Court to that effect.
That given an linking of the intention of the husband. Thus,
the report of the postman should not have been relied on by
the learned District Judge. Further there is oath against oath.
The appellant has stated on oath that no notice was even
tendered to her. She never refused to accept any notice. It is
apparent that the husband managed to get the notice sent by
registered post through the Clerk of the Court. It is not
impossible for such a husband to get the endorsement of
refusal made by a postman on such a registered letter. No
doubt, postman has been examined by him, but under the
afore-mentioned circumstances, the District Judge should
not have relied on his oath. Thus, in my considered view, it
is apparent on record that the appellant was not served in
accordance with law.”
4. Similar view has also been taken by Hon’ble
Patna High Court in case Union of India Vs. Sri Laxmi
Oil Mills, AIR 1984 Patna 252, wherein it was held as
CR No.1030 of 2005 10under in para No.5:
“It may be mentioned here that the learned court
below directed for service of summons by registered
post, even without issuing summons for service in the
manner provided in Rules 9 to 19 of Order 5 of the
Code. It must be noted that the mode of service by
registered post is only in addition to the service of
summons in the ordinary course. The Courts are,
therefore, required to simultaneously sent notices in
the ordinary course and by registered post. In the
circumstances of the case we find that the learned
court below did not take any step for issue of
summons in the ordinary course, i.e. in the manner
provided in Rules 9 to 19 of Order 5 of the Code. The
procedure thus adopted by the court below in issuing
summons by registered post in absence of the
summons in ordinary course was wrongly adopted.
Besides this, the proviso to Order 5, Rule 19-A (2)
provides that the declaration referred to in this sub-
rule shall be made notwithstanding the fact that
acknowledgment having been lost or mislaid or for
any other reason, has not been received by the Court
within thirty days from the date of the issue of the
summons.”
In view of the settled proposition of law, the impugned
CR No.1030 of 2005 11order cannot be sustained. Accordingly, the revision petition is
accepted and the impugned orders are set aside and the
petitioner herein is allowed to contest the suit by filing written
statement.”
Mr.R.K.Joshi, leaned counsel appearing on behalf of the
respondent, however, contended that there was no necessity to send process
by ordinary means as the court could summon the defendants only by way
of registered post. Learned counsel for the respondent further contended
that if registered letter is properly addressed and prepaid and no
acknowledgment is received back within 30 days of the date of issue of the
summons the court can declare due service of summons.
In support of this contention reliance was placed on the
judgment of this court in the case of M/s Mankoo Industrial Corporation,
Ludhiana Vs. M/s Supreme Industries, Ludhiana (1987-2) P.L.R. 158,
wherein this court was pleased to hold as under:-
“3. I do not find any force in these submissions. The receipt
from the post office regarding the summonses sent by registered
post is on the file of the trial Court as noticed by the learned
Additional District Judge. It shows that the summonses were
sent by registered post on 18.11.1981. It is with a view to avoid
undue delay in the service of summonses that proviso to rule
19-A ibid provides that where the summonses were properly
addressed, pre-paid and duly sent by registered post
acknowledgment due, the Court ma declare that the summonses
had been duly served on the defendant notwithstanding the fact
CR No.1030 of 2005 12that the acknowledgment had been lost or mislaid or for any
other reason had not been received by the Court within 30 days
from the date of the issue of summonses. This requirement of
the statute having been complied with, the Court was well
within its jurisdiction to declare due service of summonses on
the defendant-petitioner.”
However, judgment referred to above does not support the case
of the petitioners. In the case of M/s Mankoo Industrial Corporation,
Ludhiana Vs. M/s Supreme Industries, Ludhiana (supra) besides
service of registered covers service was also ordered by ordinary means.
Furthermore, it may be noticed that there was sufficient
evidence on record to show that registered covers were sent at the correct
address as receipt showing dispatch of registered covers was proved on
record.
In the present case, there is absolutely no material, whatsoever,
to show the dispatch of registered covers and the service has been
presumed to merely on the basis of report of the Ahlmad then there was no
other material on record to form such opinion.
Thus, in view of the law laid down by this court in the case of
M/s Dooars Transport Ltd. Vs. M/s Rattan Chand Harjas Rai Pvt. Ltd.
& Anr. it has to be held that the petitioners were not served and thus, there
was sufficient ground for setting aside ex parte judgment and decree dated
2.10.1985.
The finding of the learned courts below on issue No.1 also
cannot be sustained as limitation is to start from the date of knowledge.
CR No.1030 of 2005 13
Learned courts below were wrong in coming to the conclusion that fake date
was mentioned by the petitioners. The conduct of the plaintiff-respondent in
not executing the decree for 12 years only shows that the said decree was
kept as guarded secret, therefore, there was no reason to disbelieve the
evidence led by the petitioners with regard to the date knowledge. Thus, the
finding on issue No.1 by the learned courts below also deserve to be set
aside.
Learned counsel for the respondent placed reliance on the
judgment of Hon’ble Supreme Court in the case of Shri M.L.Sethi Vs.
R.P.Kapur AIR 1972 SC 2379 to contend that in exercise of revisional
power it is not open to the court to interfere with the concurrent finding
recorded by the learned courts below. Hon’ble Supreme Court in the said
case has been pleased to lay down asunder:-
” The provisions of S.115 of the Code have been examined
by judicial decisions on several occasions. While exercising its
jurisdiction under S.115, it is not competent to the High Court
to correct errors of fact however gross they may be, or even
errors of law, unless the said errors have relation to the
jurisdiction of the Court to try the dispute itself. As clauses (a)
(b) and (c) of S.115 indicate, it is only incases where the
subordinate Court has exercised a jurisdiction not vested in it
by law, or has failed to exercise a jurisdiction so vested, or has
acted in the exercise of its jurisdiction illegally or with material
irregularity that the revision jurisdiction of the High Court can
be properly invoked. It is conceivable that points of law may
CR No.1030 of 2005 14arise in proceedings instituted before subordinate courts which
are related to questions of jurisdiction. It is well settled that a
plea of limitation or a plea of res judicata is a plea of law which
concerns the jurisdiction of the court which tries the
proceedings. A finding on these pleas in favour of the party
raising them would oust the jurisdiction of the court and so an
erroneous decision on these pleas can be said to be concerned
with questions of jurisdiction which fall within the purview of
S.115 of the Code. But an erroneous decision on a question of
law reached by the subordinate court which has no relation to
questions of jurisdiction of that court, cannot be corrected by
the High Court under S.115.”
This authority is also of no help to the petitioners as in the
present case the finding recorded by the learned courts below are perverse
and based on no evidence, whatsoever.
Learned trial court noticed that except for the report of Ahlmad
there was no material on record to show service. Service effected was also
not in consonance with the provisions of Order 5 Rule 19-A of the Code
and thus, when the findings recorded by the courts below are perverse and
based on evidence it is always open to this court to interfere with such
finding in exercise of revisional jurisdiction.
Lastly, it was contended by the learned counsel for the
respondent that in view of the proviso to Order 9 Rule 13 of the Code ex
parte decree cannot be set aside merely on the ground of irregularity of
service of summons.
CR No.1030 of 2005 15
However, this plea also cannot be accepted as it is provided that
irregularity in service is to be ignored if the court is satisfied that party had
notice of the date of hearing and had sufficient time to appear and contest
the claim of the plaintiff.
In the present case there has been no service on the defendants
and therefore, the proviso to Order 9 Rule 13 of the Code is also of no help
to the respondent.
For the reasons stated above this revision is allowed. Order
passed by the courts below are set aside and the application moved by the
petitioners for setting aside ex parte judgment and decree stands allowed.
The parties through their counsel are directed to appear before
the learned trial court on 20.9.2008 for further proceedings in the case.
21.8. 2008 (Vinod K.Sharma) rp Judge