JUDGMENT
J.V. Gupta, J.
1. This petition is directed against the orders of the Additional District Judge, Amritsar, dated 7th of April, 1989 whereby the order of the trial Court, dated 18-1-1988 dismissing the application for setting aside ex-parte decree under Order 9, Rule 13 C.P.C. was maintained,
2. A suit for possession of one half share of land measuring 73 Kanals 11 marlas was filed by Dewan Singh plaintiff on 9-3-1984 against his own sons, their vendees and against four sons of Gajjan Singh namely, Harbhej Singh, Avtar Singh, Baldev Singh and Saravjit Singh. The addresses of these defendants was given to be residents of village Kasel,, tehsil Tarn Taran, District Amritsar. Thus there were as many as 12 defendants in the suit. The defendants were served by substituted service, that is, by munadi in the village but as none of them appeared ex parte decree was passed by the trial Court on 13-3-1985. Harbhej Singh son of Gajjan Singh filed the application for setting aside the ex-parte decree dated 2-8-1985 on the averments that he was not duly served He was living in Libya at the time when the suit was filed and decreed. Moreover, he is ordinarily residing at Plot No. 98, Professor Colony, Amritsar and not in village Kasel, tehsil Tarn Taran, the address given by the plaintiff. According to him, he came to know about the ex parte decree on 31-7-1985 and therefore, the application was within time which was filed on 2-8-1985. This application was resisted by Dewan Singh plaintiff on the ground that the said defendant was duly served. He was in the knowledge of the proceedings. He has concocted a story simply to mislead the Court and to delay the proceedings. The application is barred by time. The trial Court after framing the issues and allowing the parties to lead evidence came to the conclusion that there was no ground to set aside the ex-parte decree. There was no material on the record from which it could be concluded that the applicant Harbhej Singh did not have any notice of the pendency of the suit. The application was also held to be barred by time. In appeal the learned Additional District Judge affirmed the said findings of the trial Court.
3. On the last date of hearing records of the case was sent for as it was necessary for the proper disposal of the case.
4. Learned counsel for the petitioner submitted that there is no order on the file directing substituted service of the defendants. Moreover, argued the learned counsel even the report of the Process-Server was that the sons of Gajjan Singh including the petitioner do not reside in village Kasel, tehsil Tarn Taran, the address which was given by the plaintiff. In spite of this, the trial Court on the basis of the Munadi proceeded exparte against the defendents. He further submitted that once it is found that there was no due service the application could not be held to be barred by time.
5. The plaintiff-respondent Dewan Singh appeared in person on the last date of hearing but today he was not present though he had the knowledge about the date.
6. After going through the record of the trial Court, I find that the defendants Hairbhej Singh and his brother’s sons of Gajjan Singh were never duly served. Even according to the report of the Process-Server the sons of Gajjan Singh were not residing in the village Kasel but in spite of that munadi was done in the village and on the basis of that defendants were proceeded ex-parte. The other defendants were the sons of the plaintiff himself and the other two defendants, Dalip Singh and others were their vendees. Thus, they had no interest as such to contest the suit. The contesting defendants could only be the sons of Gajjan Singh who claim the suit property on the basis of a will executed in their favour by Assa Singh their uncle. As regards Harbhej Singh petitioner he is residing in Amritsar whereas the other three brothers are residing in Uttar Pradesh for the last so many rears. Harbhej Singh petitioner filed the application for setting aside the ex-parte decree but the same has been rejected by the Courts below primarily on the ground that he was not the only party to the suit. In fact the other defendants were his brothers, sisters and mothers were arrayed as defendants. Thus, in the probabilities they would tell him about the ex-parte decree or the pendency of the suit This approach was wholly wrong and misconceived and thus the Courts below have acted illegally and with material irregularity in the exercise of their jurisdiction. None of the said defendants had knowledge of the suit as they were not living in the village Kasel. In any case, that could not be a ground to hold that in all probabilities they would tell the petitioner Harbhej Singh about the ex parte decree or the pendency of the suit. Once it is held that even they were not duly served, the question of passing the information to the defendant Harbhej Singh as such did not arise. Moreover, from the record, it is evident that even the Process-Server reported that the sons of Gajjan Singh are not living in the village and in spite of that on the basis of the munadi in the village ex-parte proceedings were taken. Moreover, there is no order on the file of the trial Court for directing substituted service of the defendants. Order 5, Rule 11 C.P.C provides that “save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.” That being so, the knowledge of the suit or of the ex-parte decree of one of the defendants was no ground to hold that the others had also the knowledge of the suit. As observed earlier, these defendants were the sons and their vendees, of the plaintiff himself and their interest was adverse to the other defendants. The other defendants that is sons and widow of Gajjan Singh were not living in the village as reported by the Process-Server as well and, therefore, under the circumstances it could not be held that any due service was effected on them as well. Once it is so held, then the question of passing information by them to the petitioner Harbhej Singh did not arise. Thus, the application for setting aside the ex parte decree has been dismissed arbitrarily and against the record. Consequently, this petition succeeds. The impugned orders are set aside and the application for setting aside the ex-parte decree is allowed with no order as to costs. The parties are directed to appear in the trial Court on 22-12-1989. In order to expedite the hearing of the suit it is directed that the parties will lead evidence at their own responsibility, through dasti summons may be given it so desired as contemplated under Order 16 Rule 7 A C.P.C.