ORDER
M.M. Kumar, J.
1. This appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity ‘the Code’) by the defendant-appellant Gram Panchayat challenges the judgment and decree passed by both the Courts below. The Civil Judge, Karnal has decreed the suit ex parte vide his judgment and decree dated 30.11.1983 which on appeal of the defendant-appellant has been maintained by the learned Additional District Judge vide his judgment and decree dated 31.10.1984.
2. Brief facts of the case necessary for disposal of the appeal are that the plaintiff-respondents filed Civil Suit No. 78 of 1983 on 5.2.1983 for a declaration to the effect that they were owner in possession of the suit land since the time of their fore-father. It was claimed that they were gair marusi tenant and were in the cultivating possession of the suit land for over 35 years. The plaintiff-respondents asserted that they did not pay any rent to the defendant-appellants and that they were co-sharer in the village common land claiming that there was no interference from any one of the co-sharer or the defendant-appellant Gram Panchayat. The plaintiff-respondents had asserted that the defendant-appellant was trying to dispossess them which resulted into filing of the present suit. The Civil Judge, Karnal while accepting the ex parte evidence adduced by the plaintiff-respondents decreed the suit vide his judgment and decree dated 30.11.1983 in favour of the plaintiff-respondent. The defendant appellant filed an appeal against the ex parte judgment and decree which has also been dismissed. Rejecting the argument that there was no due service effected on the defendant-appellants, the learned Additional District Judge held that there was due service effected and observed as under:
“I have been taken through the summons issued in this case and find that originally the summons were issued for 25.3.1983 to the Sarpanch Gram Panchayat Garhi Jattan and a copy of the plaint was attached therewith. The service could not be effected on the Sarpanch and therefore, under the order of the Court a fresh notice was sent to the Sarpanch Gram Panchayat Garhi Jattan for 16,5.1983 and this time also, a copy of the plaint was sent alongwith summons. Summons was duly received by Sarpanch Bhagat Ram of Garhi Jattan who not only thus marked the summons but also affixed his seal in token of having received it. Therefore, it does not lie in the mouth of the appellant to say that the defendant Gram Panchayat had not been duly served in this case.”
3. The ld. Addl. District Judge further held that the appeal filed by the defendant-appellant was beyond the period of limitation because the defendant-appellant was duly served. The relevant observations of Id. Addl. District Judge, in this regard reads as under:
“The arguments advanced on behalf of appellant, in this case must fall because here the Gram Panchayat had been duly served and the limitation had started running from the date of decree i.e. 30.11.1983 and the present appeal having been filed on 17.1.1984 was hopelessly barred by time. In this case where the Gram Panchayat appellant had knowledge of the litigation but for reasons best known to it or its Sarpanch, it allowed ex parte decree to be passed against it, it cannot be heard saying that it had not been duly served and therefore, the starting point of limitation should be the date of knowledge of the decree. In S. Ameeran Saheh’s case, it was an application U/o 9 Rule 13 C.P.C., regarding which pronouncement was made by the Hon’ble High Court of Madras. It was not a case of the nature presently in hand. As held in 1977 P.L.J. 496 (Darshan Singh and Mohinder Singh v. Shri Ajaib Singh and Ors.), for claiming benefit of Section 5 of the Limitation Act, each day’s delay must be explained and in the present case, no explanation whatsoever is forth coming for the inordinate delay on the part of Gram Panchayat in filing this appeal.”
4. The other argument that the Civil Court lacked jurisdiction was also rejected on the ground that, no written statement had been filed and a perusal of the plaint clearly showed that the Civil Court enjoyed jurisdiction. The Additional District Judge also accepted the ex parte evidence adduced by the plaintiff-respondents and observed as under:
“That bring us to the ex parte evidence adduced by the plaintiff who contended that they were in cultivating possession of the disputed land for the last more than 25 years. Jamabandi PW1/1 for the year 1980-81 shows the plaintiffs Pirthi and Ranjit to be in cultivating possession of the disputed land and in the Khasra Girdawari Ex.P5 from Kharif 1981 to Rabi 1983, the entries are repeated in their favour. The plaintiffs, executed lease deeds through registered documents on 11.7.1975 for a period of five years in respect of the disputed land in favour of Jia Lal son of Puna Ram. The appellant Gram Panchayat no doubt contended that these were fake and illegal documents but there is nothing on the file to draw an inference in that regard. The documentary evidence available on the file gets corroboration from the testimony of PW3 Rattan Singh and PW4 Ran Singh and there was no rebuttal to the evidence adduced on behalf of the plaintiffs. Therefore, on the basis of the ex parte evidence available before the learned trial Court, it was justified in passing an ex parte decree in favour of the plaintiff-respondents.
5. Shri C.B. Goel, learned counsel for the defendant-appellant has argued that the learned Additional District Judge has committed a grave error in law by holding that the remedy of the defendant-appellant was to file an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for brevity ‘the Code’) alone for setting aside the ex parte judgment and decree and that it could not have filed art appeal. Referring to the provisions of Section 96(2) of the Code read with explanation of Order 9 Rule 13 of the Code, the learned counsel has argued that the appeal under Section 96 is also a remedy available to the defendant-appellant in addition to filing of an application under Order 9 Rule 13 of the Code. In this regard, he has placed reliance on a judgment of this Court in the case of Dev Dutt Sud v. Om Parkash, 1979 P.L.J. 197. Learned counsel has further argued that the expression due service used in Order 5 Rule 2 of the Code has been interpreted by a Division Bench of this Court in the case of Babu Ram Bhatnagar v. Satish Kumar Rawal, (1991-2)100 P.L.R. 234 to mean that it must include a copy of the plaint or concise statement thereof alongwith the summons. Such a requirement according to the learned counsel is mandatory and failure to add a copy of the plaint would mean no due service. The only exception carved out by the Division Bench is in cases where the plaintiff had to prove affirmatively by producing categorical evidence that the defendant had knowledge of the exact claim made by the plaintiff. He has placed reliance on another judgment of this Court in the case of Kamal Singh v. Dina Nath, (1985-2)88 P.L.R. 477 and pointed out that the Division Bench in Babu Ram’s case (supra) had approved the view taken in Kamal Singh’s case. On the afore-mentioned basis, the learned counsel has argued that judgment of both the Courts below with regard to the acceptance of the plea of due service has to be set aside and the ex parte decree passed by the Civil Judge and accepted by the first appellate Court had to be reversed.
6. Shri Sanjiv Gupta, learned counsel for the plaintiff-respondents has argued that an ex parte decree cannot be set aside merely on the ground that there was an irregularity in the service of summons. Even if the plaint was not there, the 2nd proviso appended to Rule 13 of Order IX of the Code would be attracted. He has further argued that in the absence of an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree, the appeal filed under Section 96 cannot be converted into such like application. In this regard, he has placed reliance on a judgment of this Court in the case of Maya Devi v. Mehria Gram Dall Mill, (1987-1)91 P.L.R. 647. The learned counsel has further pointed out that the jurisdiction of the Civil Court is not barred and persons in possession could always seek a declaration of their title by instituting a suit provided the same was filed within 5 years from the date of commencement of Haryana Act No. 11 of 1981 and Haryana Act No. XV of 1983. According to the learned counsel, Haryana Act No. 11 of 1981 came into force on 12.2.1981. In support of his submission, he has placed reliance on two judgments of this Court in the case of Jogi Ram v. Collector-cum-D.C. Kurukshetra, (19921)101 P.L.R. 400 and Bakshi Ram and Anr. v. Suresh Kumar etc., 1998(1) P.L.J. 686. Learned counsel has maintained that once the plaintiff-respondents are proved to be in possession of shamlat deh through their tenants for more than 12 years without payment of rent or charges then they must be regarded as having been in cultivating possession of the land as also the owner thereof. Such land is excluded from the definition of shamlat deh by Section 4(3)(1)(ii) of Punjab Village Common Lands Act, 1961.
7. I have thoughtfully considered the rival contentions raised by the learned counsel for the parties and am of the view that this appeal deserves to be accepted. The lower appellate Court has decreed the suit in favour of the plaintiff-respondents by placing reliance on two documents namely, jamabandi Ex. PW1/1 for the year 1980-81 showing that the plaintiff-respondents were in cultivating possession of the suit land. Reliance has also been placed on khasra girdawari Ex.P.5 from Kharif 1981 to Rabi 1983 as also the lease deed dated 11.7.1975 Ex.P4 showing that the land was given on lease by the plaintiff-respondents. An analysis of the afore-mentioned documents would show that the ownership and possession of the plaintiff-respondents has not been established. A perusal of Ex.PW1/1 clearly shows that the Gram Panchayat is the owner of the suit land although the plaintiff-respondents are shown to be in possession in the column of cultivator. Similarly, a perusal of Ex.P.5 which is a copy of khasra girdawari for kharif 1981 and Rabi 1981 as well as kharif 1982 and Rabi 1983 would also show the Gram Panchayat to be the owner and the plaintiff-respondents in cultivating possession. Both these documents have been completely mis-read by both the Courts below for holding that plaintiff-respondents have proved themselves to be owners in possession.
8. It is further evident that there is no evidence on record showing that plaintiff-respondents were in possession five years prior to the execution of Haryana Act No. 11 of 1981 which came into force on 12.2.1981. The document Ex.P.4 is merely a lease deed showing that the land was given on lease by the plaintiff-respondent for the purposes of cultivation to Joya Lal. It has been recited in the lease deed that each half of the revenue is to be collected in respect of Kharif crop in December and Rabi crop in June. This document has not been reflected any way in the khasra girdawari to prove the fact that the land was actually given on lease. Therefore, on the basis of the afore-mentioned evidence, no finding could have been recorded in favour of the plaintiff-respondents that they were owner in possession of the suit land.
9. It is well settled that for sustaining the ex parte decree it is incumbent upon the successful party to show the presence of adequate evidence to sustain the findings. Merely because one of the party is absent would not ipso facto leads to the conclusion that the evidence adduced by the successful party supports his case. It is equally well settled that a mere fact that the plaintiff-respondent had chosen to adduce some evidence cannot by itself entitle him to an ex parte decree. Even the decree has to be passed only on the basis of reliable evidence. It is a duty cast on the Court to ensure that in ex parte cases decree is based on cogent and reliable evidence. For this proposition reliance could be placed on a judgment of the Supreme Court in the case of Sudha Devi v. M.P. Narayanan, (1988)3 S.C.C. 366. Similar view has been taken in the matrimonial cases like Balwinder Kaur v. Hardeep Singh, (1998-1)118 P.L.R. 655 (S.C.) and Vishnu Prakash v. Sheela Devi, (2001)4 S.C.C. 729.
10. Moreover, the question with regard to jurisdiction of the Civil Court is the relevant question. The learned Additional District Judge has dealt with the afore-mentioned question in a highly casual manner. The question of jurisdiction cannot be answered only by reference to the plaint because there are remedies available under the Village Common Lands (Regulation) Act, 1961 and it has to be decided by the courts below whether the Civil Court had the jurisdiction in the facts and circumstances of the present case.
11. I am further of the view that the learned lower appellate Court has committed an illegality by holding that the application under Order IX Rule 13 of the code alone could have been filed implying that the appeal was not competent. A perusal of Section 96(2) read with explanation of Order IX Rule 13 of the Code would show that the remedy of first appeal in an ex-parte decree is also available to an aggrieved party. It is not necessary, for an aggrieved party to first file an application under Order IX Rule 13 of the Code before the trial Court for setting aside of ex parte decree. The aggrieved party can file an appeal from the original decree passed ex parte as is provided in Section 96(2) of the Code. Section 96(1)(2) and Order 9 Rule 13 of the Code reads as under:
“96. Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.”
Order IX
“Appearance of parties and consequence of non-appearance.
1 to 12 xx xx xx
13. Setting aside decree ex-parte against defendant.- In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
(Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim:)
(Explanation.- Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree.)”
12. A co-joint reading of the afore-mentioned provisions would make it evident that the remedy of filing appeal against the decree passed ex-parte is also available to the aggrieved party. Therefore, the view expressed by the learned lower appellate Court that application under Order 9 Rule 13 of the Code should have been filed cannot be accepted. The afore-mentioned view is supported by the judgment of this Court in Dev Dutt Sud’s case (supra).
13. For the reasons stated above, this appeal succeeds and is allowed. The judgment and decree passed by both the Courts below are set aside. The case is remanded back to the trial Court for decision on merits. As the public property belonging to Gram Panchayat is in dispute it would be appropriate to permit, the Gram Panchayat to file its written statement. The Trial Court shall proceed with the trial in accordance with law after the filing of the written statement, which shall be subject to payment of cost of Rs. 5,000/-.