High Court Punjab-Haryana High Court

Baldev Singh vs Kulbir Singh on 2 September, 2009

Punjab-Haryana High Court
Baldev Singh vs Kulbir Singh on 2 September, 2009
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