{"id":155619,"date":"2008-08-21T00:00:00","date_gmt":"2008-08-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohinder-singh-anr-vs-mohinder-singh-ors-on-21-august-2008-2"},"modified":"2017-12-09T02:09:45","modified_gmt":"2017-12-08T20:39:45","slug":"mohinder-singh-anr-vs-mohinder-singh-ors-on-21-august-2008-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohinder-singh-anr-vs-mohinder-singh-ors-on-21-august-2008-2","title":{"rendered":"Mohinder Singh & Anr vs Mohinder Singh & Ors on 21 August, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Mohinder Singh & Anr vs Mohinder Singh & Ors on 21 August, 2008<\/div>\n
CR No.1030 of 2005                                                     1\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n\n\n\n                                      CR No.1030 of 2005\n\n                                      Date of Decision: 21.8.2008\n\n\n\nMohinder Singh & Anr.                                  ..Petitioners\n\n                        Vs.\n\nMohinder Singh & Ors.                                  ..Respondents\n\n\n\n\nCoram: Hon'ble Mr. Justice Vinod K.Sharma\n\n\n\nPresent:    Mr.B.R.Mahajan, Advocate,\n            for the petitioner.\n\n            Mr.R.K.Joshi, Advocate,\n            for respondent No.1.\n\n                       ---\n      1.    Whether Reporters of Local Newspapers may\n            be allowed to see the judgment?\n\n      2.     To be referred to the Reporters or not?\n\n      3.     Whether the judgment should be reported in\n             Digest?\n                             ---\n\n\nVinod K.Sharma,J. (Oral)\n<\/pre>\n
            This revision petition is directed against the order passed by<\/p>\n
the learned courts below dismissing an application moved by the petitioners<\/p>\n
under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure
\n CR No.1030 of 2005                                                    2<\/span><\/p>\n
for setting aside    ex parte decree passed by in favour of the plaintiff-<\/p>\n
respondent.\n<\/p>\n
              A suit titled as ‘Mohinder Singh Vs. Uttam Singh and others’<\/p>\n
was   decided by the court of learned Sub Judge II Class, Amritsar on<\/p>\n
24.10.1985. Said judgment was ex parte.\n<\/p>\n
              The petitioner moved an application under Order 9 Rule 13 of<\/p>\n
the Code on the ground that the petitioners were never served at any point<\/p>\n
of time   in those proceedings. It was the case of the petitioners that<\/p>\n
summons were never served upon them and no registered covers were<\/p>\n
tendered by the plaintiff-respondent. It was      claimed that the plaintiff\/<\/p>\n
respondent in connivance with some of the officials of Process Serving<\/p>\n
Agency managed to obtain a false report regarding their service with a view<\/p>\n
to obtain ex parte judgment and decree against them. It was claimed that the<\/p>\n
plaintiff-respondent also concealed material facts from the learned court for<\/p>\n
getting the above said impugned decree at their back which is evident from<\/p>\n
the fact that the plaintiff respondent did not get the decree executed till<\/p>\n
9.10.1997 i.e. almost for a period of 12 years. During this long period the<\/p>\n
decree was kept closely guarded secret and that is why the petitioners<\/p>\n
never came to know about the same.\n<\/p>\n
              It was claimed by the petitioners that they have already set up<\/p>\n
their factory at the disputed     site and they are fulfiling their   export<\/p>\n
commitments by working therein for the last so many years. The petitioners<\/p>\n
also raised loan from Punjab Financial Corporation. It was claimed that the<\/p>\n
petitioners came to know about the said judgment and decree only on<\/p>\n
22.8.1998 when they visited the court premises in connection with their
\n CR No.1030 of 2005                                                   3<\/span><\/p>\n
other cases and after making inquiries the application was immediately filed<\/p>\n
on 29.8.1998. The petitioners also claimed that as per basic principle of law<\/p>\n
rights of various parties should   preferably be adjudicated on their merits<\/p>\n
and technicalities of law should not come in the way of justice. It was also<\/p>\n
claimed that the absence of the petitioners was neither intentional nor<\/p>\n
willful and therefore, they should be allowed to defence the suit and ex<\/p>\n
parte judgment and decree be set aside.\n<\/p>\n
            The application was supported by an affidavit.\n<\/p>\n
            The application was contested by the plaintiff-respondent, inter<\/p>\n
alia, on the ground that the petition was not maintainable as the same was<\/p>\n
barred by limitation. The allegations that the petitioners were not served<\/p>\n
was also   denied. It was claimed that both the petitioners       and other<\/p>\n
defendants were members of the same family who were duly served and did<\/p>\n
not appear in the court despite service and therefore, they were rightly<\/p>\n
proceeded ex parte. The contention        that incorrect report was procured<\/p>\n
with the connivance of Process Server was also denied. The respondent<\/p>\n
plaintiff further claimed that the decree was well within the knowledge of<\/p>\n
the petitioners in spite of which they kept on raising construction at the<\/p>\n
spot simply by turning blind eye thereto. The averments that the petitioners<\/p>\n
came to know about the said decree on 22.8.1998 was also denied.<\/p>\n
            The learned trial court on the pleadings of the parties framed<\/p>\n
the following issues:-\n<\/p>\n
            “1.     Whether the application is within limitation? OPA<\/p>\n
            2.      Whether there are sufficient grounds to set aside ex<\/p>\n
                    parte judgment and decree dated 24.10.85 passed by
\n CR No.1030 of 2005                                                   4<\/span><\/p>\n
                   court of Sh,.Naginderjit Singh,the then Sub Judge II<\/p>\n
                   Class, Amritsar? OPA<\/p>\n<\/blockquote>\n
            3.     Relief.<\/p><\/blockquote>\n
            The petitioners in support         of their   petition examined<\/p>\n
Harbhajan Singh, Record Keeper as AW 1 and Mohinder Singh petitioner<\/p>\n
himself appeared as AW 3. Thereafter evidence was closed. In defence<\/p>\n
plaintiff-respondent Mohinder appearing as RW 1 and also examined<\/p>\n
Mohinder Singh son of Bawa Singh as RW 2 and thereafter evidence was<\/p>\n
closed.\n<\/p>\n
            Learned trial court decided both the issues against the<\/p>\n
petitioners and consequently dismissed the petition.<\/p>\n
            The appeal filed by the petitioners also stands dismissed by the<\/p>\n
learned Additional District Judge, Amritsar.\n<\/p>\n
            Mr.B.R.Mahajan, learned counsel appearing on behalf of the<\/p>\n
petitioners contended that Uttam Singh was owner of land measuring 202<\/p>\n
Kanals by way of sale deed dated 23.1.1980. 12 kanals of land was sold to<\/p>\n
defendants No.3 to 5 in the suit and by way of another sale deed of the<\/p>\n
same date 7 kanals 15 marlas of land was sold to defendant No.6. After<\/p>\n
about 5 years of the execution of the sale deed the plaintiff respondent son<\/p>\n
of Uttam Singh filed a suit to challenge the said sale deeds by claiming that<\/p>\n
Uttam Singh was addict and a gambler and the sale deeds were made by<\/p>\n
him without legal necessity.\n<\/p>\n
            Learned counsel for the petitioners referred to the proceedings<\/p>\n
of the case which show that the case was put up before the learned trial<\/p>\n
court on 22.2.1985 wen notice was issued to the defendants for 22.3.1985.
\n CR No.1030 of 2005                                                    5<\/span><\/p>\n
Learned trial court on 22.3.1985 noticed that Registered Covers were not<\/p>\n
issued due to deficiency of stamps. The plaintiff respondent was given 2<\/p>\n
days’ time to make good the deficiency and the defendants thereafter were<\/p>\n
ordered to be summoned for 3.5.1985 by way of registered covers. On<\/p>\n
3.5.1985 it was noticed that A,.D were not received back and the case was<\/p>\n
adjourned to 21.5.1985. On 21.5.1985 it was noticed that Tara Singh and<\/p>\n
Mohinder Singh defendants No.6 and 5 were served but they were absent<\/p>\n
and they were ordered to be proceeded ex parte. It was further observed that<\/p>\n
registered covers for the other defendants were not received back and the<\/p>\n
case was adjourned to 11.6.1985. On 11.6.1985 it was noticed that<\/p>\n
Registered Covers were not received back and as the period of one month<\/p>\n
had expired and accordingly their service was presumed. They were also<\/p>\n
proceeded ex parte.\n<\/p>\n
              Ex parte proceedings were recorded and decree was passed on<\/p>\n
24.10.1985.\n<\/p>\n
              The plaintiff respondent took no steps for execution of the said<\/p>\n
decree for almost 12 years and then before 15 days prior to 12 years filed an<\/p>\n
execution application for executing ex parte decree.<\/p>\n
              Learned counsel for the petitioners vehemently contended that<\/p>\n
in the present case it has been proved on record that the petitioners were not<\/p>\n
served for the reason that there was no material on record to show the<\/p>\n
service except for the report of Ahlmad which was based on no material,<\/p>\n
whatsoever.\n<\/p>\n
              Learned trial court in the impugned judgment recorded a<\/p>\n
positive finding that the court could not find any material on record on the
\n CR No.1030 of 2005                                                     6<\/span><\/p>\n
basis of which the report was made by Ahlmad. However, came to the<\/p>\n
conclusion that it could not find any material on the basis of which the<\/p>\n
report was submitted by the Ahlmad. However, failed to interfere with the<\/p>\n
order on the ground that his predecessor had accepted the said report and<\/p>\n
thus, the court had formed a subjective satisfaction about service.<\/p>\n
            The contention of Mr.B.R.Mahajan, learned counsel for the<\/p>\n
petitioners, therefore, was that in view of this finding no other conclusion<\/p>\n
but to hold that the petitioners were not served could have been arrived as<\/p>\n
there was absolutely no material except the report of the Ahlmad which was<\/p>\n
also based on no material. Learned counsel for the petitioners further<\/p>\n
referred to the statement made by the plaintiff respondent wherein in cross-<\/p>\n
examination he admitted that it is correct that the defendants-judgment<\/p>\n
debtors resided at the address of Kala Name Shah, Dhab Wasti Ram from<\/p>\n
1965 to 1985.\n<\/p>\n
            The contention of the learned counsel for the petitioners<\/p>\n
therefore, is that in view of the admission made by the plaintiff it could<\/p>\n
safely be said that in the present case there was no service on the petitioners<\/p>\n
and the presumption that the petitioners stood served at the factory premises<\/p>\n
therefore, could not be drawn as admittedly registered covers or A.Ds were<\/p>\n
not received back nor any postal receipt showing despatch of Register<\/p>\n
Cover placed on record.\n<\/p>\n
            Learned counsel for the petitioners further challenged         the<\/p>\n
findings on issue No.2 on the plea that the petitioners had led evidence to<\/p>\n
show that the petitioners got knowledge of the ex parte decree only on<\/p>\n
22.8.1998 and the present application was moved            7 days thereafter,
\n CR No.1030 of 2005                                                    7<\/span><\/p>\n
therefore it was within limitation.\n<\/p>\n
             I find force in the contentions raised by the learned counsel for<\/p>\n
the petitioners.\n<\/p>\n
             As per provisions to Order 5 Rule 19-A mode of service by<\/p>\n
registered post is in addition to the service of summonsin the ordinary<\/p>\n
course. It may be noticed that in the present case no steps were taken to<\/p>\n
serve the petitioners by ordinary means and straightway the service was<\/p>\n
ordered by way of substituted service. This court in the case of M\/s Dooars<\/p>\n
Transport Ltd. Vs. M\/s Rattan Chand Harjas Rai Pvt. Ltd. & Anr.,<\/p>\n
2006 (4) RCR (Civil) 449 has been pleased to lay down as under:-<\/p>\n
             “2.   The facts which are not in dispute are that the suit for<\/p>\n
             recovery was filed on 19.4.1989 and on the same date notice<\/p>\n
             was issued for 28.7.1989. Though the order passed on<\/p>\n
             19.4.1989 shows that the Court has mentioned that the service<\/p>\n
             would be effected on filing of process fee, summons forms,<\/p>\n
             copies of plaint as well as registered A.D.Covers. However, it<\/p>\n
             is not in dispute that summons were sent only through<\/p>\n
             registered covers and even     though there was no proof of<\/p>\n
             service on presumption of service ex parte proceedings were<\/p>\n
             taken against the petitioner and ex parte decree was passed on<\/p>\n
             29.10.1990. It was only on 22.3.1991 that the petitioner came<\/p>\n
             to know about the decree when Baillif approached them for the<\/p>\n
             execution of the same and on that very day the application was<\/p>\n
             moved for setting aside ex parte decree. However, learned<\/p>\n
             courts below by treating that defendants were served on the
\n CR No.1030 of 2005                                                    8<\/span><\/p>\n
          basis of presumption of service rejected the application. It is<\/p>\n
          not in dispute that in the year 1989 the court was bound to<\/p>\n
          serve the defendant in pursuance of Order 5 Rule 19-A of the<\/p>\n
          Code of Civil Procedure (for short the Code) which provided<\/p>\n
          that resort by registered post could be taken simultaneously<\/p>\n
          with personal service.\n<\/p><\/blockquote>\n
          3.             In the present case, there is    clear violation of<\/p>\n
          Order 5 Rule 19-A of the Code which was held to be<\/p>\n
          mandatory by this Court in the case of Smt.Parmilesh Vs.<\/p>\n
          Vinod Kumar 1997 (1) PLR 178. Para 10 of the judgment<\/p>\n
          reads as under:\n<\/p><\/blockquote>\n
               ”     From the trial Court’s record, it is evident that in the<\/p>\n
               matrimonial case on 3.1.1994 it was ordered that fresh<\/p>\n
               process fee with her correct address be submitted by<\/p>\n
               husband. There was no order that the notice be sent by<\/p>\n
               registered post. From that record it is evident that on<\/p>\n
               24.1.1994 the husband paid process fee with registered<\/p>\n
               cover; no order was obtained from the matrimonial Court<\/p>\n
               and notices were sent by registered post to the respondent;<\/p><\/blockquote>\n
\n<\/blockquote>\n
               no ordinary process was issued. Order 5 Rule 19-A provides<\/p>\n
               that “the Court shall, in addition to, and simultaneously with,<\/p>\n
               the issue of summons for service in the manner provided in<\/p>\n
               Rules 9 to 19 (both inclusive), also direct the summons to be<\/p>\n
               served by registered post, acknowledgment due….” Thus, it<\/p>\n
               is obvious that the notices sent by registered post were sent
\n CR No.1030 of 2005                                                 9<\/span><\/p>\n
            against the aforementioned provision without obtaining the<\/p>\n
            order from the matrimonial Court. Provisions of this Rule<\/p>\n
            19-A are mandatory. Legislature in its wisdom has cast a<\/p>\n
            duty on the Court to issue summons by ordinary process also<\/p>\n
            when he orders service through registered post. Non-<\/p>\n
            compliance of this rule is not a mere irregularity. As I have<\/p>\n
            mentioned above in this case notice was sent by registered<\/p>\n
            post without obtaining order from the Court to that effect.<\/p>\n
            That given an linking of the intention of the husband. Thus,<\/p>\n
            the report of the postman should not have been relied on by<\/p>\n
            the learned District Judge. Further there is oath against oath.<\/p>\n
            The appellant has stated on oath that no notice was even<\/p>\n
            tendered to her. She never refused to accept any notice. It is<\/p>\n
            apparent that the husband managed to get the notice sent by<\/p>\n
            registered post through the Clerk of the Court. It is not<\/p>\n
            impossible for such a husband to get the endorsement of<\/p>\n
            refusal made by a postman on such a registered letter. No<\/p>\n
            doubt, postman has been examined by him, but under the<\/p>\n
            afore-mentioned circumstances, the District Judge should<\/p>\n
            not have relied on his oath. Thus, in my considered view, it<\/p>\n
            is apparent on record that the appellant was not served in<\/p>\n
            accordance with law.”\n<\/p><\/blockquote>\n
            4.          Similar view has also been taken by Hon’ble<\/p>\n
            Patna High Court in case Union of India Vs. Sri Laxmi<\/p>\n
            Oil Mills, AIR 1984 Patna 252, wherein it was held as
\n CR No.1030 of 2005                                              10<\/span><\/p>\n
            under in para No.5:\n<\/p><\/blockquote>\n
                  “It may be mentioned here that the      learned court<\/p>\n
                  below directed for service of summons by registered<\/p>\n
                  post, even without issuing summons for service in the<\/p>\n
                  manner provided in Rules 9 to 19 of Order 5 of the<\/p>\n
                  Code. It must be noted that the mode of service by<\/p>\n
                  registered post is only in addition to the service of<\/p>\n
                  summons in the ordinary course. The Courts are,<\/p>\n
                  therefore, required to simultaneously sent notices in<\/p>\n
                  the ordinary course and by registered post. In the<\/p>\n
                  circumstances of the case we find that the learned<\/p>\n
                  court below did not take any step for issue of<\/p>\n
                  summons in the ordinary course, i.e. in the manner<\/p>\n
                  provided in Rules 9 to 19 of Order 5 of the Code. The<\/p>\n
                  procedure thus adopted by the court below in issuing<\/p>\n
                  summons by registered post in absence of the<\/p>\n
                  summons in ordinary course was wrongly adopted.<\/p>\n
                  Besides this, the proviso to Order 5, Rule 19-A (2)<\/p>\n
                  provides that the declaration referred to in this sub-<\/p>\n
                  rule shall be made notwithstanding the fact that<\/p>\n
                  acknowledgment having been lost or mislaid or for<\/p>\n
                  any other reason, has not been received by the Court<\/p>\n
                  within thirty days from the date of the issue of the<\/p>\n
                  summons.”\n<\/p><\/blockquote>\n<\/blockquote>\n
               In view of the settled proposition of law, the impugned
\n CR No.1030 of 2005                                                     11<\/span><\/p>\n
             order cannot be sustained. Accordingly, the revision petition is<\/p>\n
             accepted and the impugned orders are set aside and the<\/p>\n
             petitioner herein is allowed to contest the suit by filing written<\/p>\n
             statement.”<\/p><\/blockquote>\n
            Mr.R.K.Joshi, leaned counsel appearing on behalf of the<\/p>\n
respondent, however, contended that there was no necessity to send process<\/p>\n
by ordinary means as the court could summon the defendants only by way<\/p>\n
of registered post. Learned counsel for the respondent further contended<\/p>\n
that if registered letter   is   properly addressed and prepaid and no<\/p>\n
acknowledgment is received back within 30 days of the date of issue of the<\/p>\n
summons the court can declare due service of summons.<\/p>\n
            In support of this contention       reliance was placed on the<\/p>\n
judgment of this court in the case of M\/s Mankoo Industrial Corporation,<\/p>\n
Ludhiana Vs. M\/s Supreme Industries, Ludhiana (1987-2) P.L.R. 158,<\/p>\n
wherein this court was pleased to hold as under:-\n<\/p>\n
            “3.   I do not find any force in these submissions. The receipt<\/p>\n
            from the post office regarding the summonses sent by registered<\/p>\n
            post is on the file of the trial Court as noticed by the learned<\/p>\n
            Additional District Judge. It shows that the summonses were<\/p>\n
            sent by registered post on 18.11.1981. It is with a view to avoid<\/p>\n
            undue delay in the service of summonses that proviso to rule<\/p>\n
            19-A ibid provides that where the summonses were properly<\/p>\n
            addressed, pre-paid and duly sent by registered post<\/p>\n
            acknowledgment due, the Court ma declare that the summonses<\/p>\n
            had been duly served on the defendant notwithstanding the fact
\n CR No.1030 of 2005                                                    12<\/span><\/p>\n
             that the acknowledgment had been lost or mislaid or for any<\/p>\n
             other reason had not been received by the Court within 30 days<\/p>\n
             from the date of the issue of summonses. This requirement of<\/p>\n
             the statute having been complied with, the Court was well<\/p>\n
             within its jurisdiction to declare due service of summonses on<\/p>\n
             the defendant-petitioner.”<\/p><\/blockquote>\n
             However, judgment referred to above does not support the case<\/p>\n
of the petitioners. In the case of M\/s Mankoo Industrial Corporation,<\/p>\n
Ludhiana Vs. M\/s Supreme Industries, Ludhiana (supra)                 besides<\/p>\n
service of registered covers service was also ordered by ordinary means.<\/p>\n
             Furthermore, it may be noticed that there was sufficient<\/p>\n
evidence on record to show that registered covers were sent at the correct<\/p>\n
address as receipt showing dispatch of registered      covers was proved on<\/p>\n
record.\n<\/p>\n
             In the present case, there is absolutely no material, whatsoever,<\/p>\n
to show the     dispatch of registered covers and the service has been<\/p>\n
presumed to merely on the basis of report of the Ahlmad then there was no<\/p>\n
other material on record to form such opinion.\n<\/p>\n
             Thus, in view of the law laid down by this court in the case of<\/p>\n
M\/s Dooars Transport Ltd. Vs. M\/s Rattan Chand Harjas Rai Pvt. Ltd.<\/p>\n
& Anr. it has to be held that the petitioners were not served and thus, there<\/p>\n
was sufficient ground for setting aside ex parte judgment and decree dated<\/p>\n
2.10.1985.\n<\/p>\n
             The finding of the learned courts below on issue No.1 also<\/p>\n
cannot be sustained as limitation is to start from the date of knowledge.
\n CR No.1030 of 2005                                                     13<\/span><\/p>\n
Learned courts below were wrong in coming to the conclusion that fake date<\/p>\n
was mentioned by the petitioners. The conduct of the plaintiff-respondent in<\/p>\n
not executing the decree for 12 years only shows that the said decree was<\/p>\n
kept as guarded secret, therefore, there was no reason to disbelieve the<\/p>\n
evidence led by the petitioners with regard to the date knowledge. Thus, the<\/p>\n
finding on issue No.1 by the learned courts below also deserve to be set<\/p>\n
aside.\n<\/p>\n
            Learned counsel for the respondent        placed reliance on the<\/p>\n
judgment of Hon’ble Supreme Court in the case of Shri M.L.Sethi Vs.<\/p>\n
R.P.Kapur AIR 1972 SC 2379 to contend that in exercise of revisional<\/p>\n
power it is not open to the court to interfere with the concurrent finding<\/p>\n
recorded by the learned courts below. Hon’ble Supreme Court in the said<\/p>\n
case has been pleased to lay down asunder:-\n<\/p>\n
            ”     The provisions of S.115 of the Code have been examined<\/p>\n
            by judicial decisions on several occasions. While exercising its<\/p>\n
            jurisdiction under S.115, it is not competent to the High Court<\/p>\n
            to correct errors of fact however gross they may be, or even<\/p>\n
            errors of law, unless the said errors have relation to the<\/p>\n
            jurisdiction of the Court to try the dispute itself. As clauses (a)<\/p>\n<\/blockquote>\n
            (b) and (c) of S.115 indicate, it is only incases where the<\/p>\n
            subordinate Court has exercised a jurisdiction not vested in it<\/p>\n
            by law, or has failed to exercise a jurisdiction so vested, or has<\/p>\n
            acted in the exercise of its jurisdiction illegally or with material<\/p>\n
            irregularity that the revision jurisdiction of the High Court can<\/p>\n
            be properly invoked. It is conceivable that points of law may
\n CR No.1030 of 2005                                                     14<\/span><\/p>\n
            arise in proceedings instituted before subordinate courts which<\/p>\n
            are related to questions of jurisdiction. It is well settled that a<\/p>\n
            plea of limitation or a plea of res judicata is a plea of law which<\/p>\n
            concerns the jurisdiction of the court which tries the<\/p>\n
            proceedings. A finding on these pleas in favour of the party<\/p>\n
            raising them would oust the jurisdiction of the court and so an<\/p>\n
            erroneous decision on these pleas can be said to be concerned<\/p>\n
            with questions of jurisdiction which fall within the purview of<\/p>\n
            S.115 of the Code. But an erroneous decision on a question of<\/p>\n
            law reached by the subordinate court which has no relation to<\/p>\n
            questions of jurisdiction of that court, cannot be corrected by<\/p>\n
            the High Court under S.115.”<\/p><\/blockquote>\n
             This authority is also of no help to the petitioners as in the<\/p>\n
present case the finding recorded by the learned courts below are perverse<\/p>\n
and based on no evidence, whatsoever.\n<\/p>\n
             Learned trial court noticed that except for the report of Ahlmad<\/p>\n
there was no material on record to show service. Service effected was also<\/p>\n
not   in consonance with the provisions of Order 5 Rule 19-A of the Code<\/p>\n
and thus, when the findings recorded by the courts below are perverse and<\/p>\n
based on evidence it is always open to this court to interfere with such<\/p>\n
finding in exercise of revisional jurisdiction.\n<\/p>\n
             Lastly, it was contended by the learned counsel for the<\/p>\n
respondent that in view of the proviso to Order 9 Rule 13 of the Code ex<\/p>\n
parte decree cannot be set aside merely on the ground of irregularity of<\/p>\n
service of summons.\n<\/p>\n
 CR No.1030 of 2005                                                       15<\/span><\/p>\n
             However, this plea also cannot be accepted as it is provided that<\/p>\n
irregularity in service is to be ignored if the court is satisfied that party had<\/p>\n
notice of the date of hearing and had sufficient time to appear and contest<\/p>\n
the claim of the plaintiff.\n<\/p>\n
             In the present case there has been no service on the defendants<\/p>\n
and therefore, the proviso to Order 9 Rule 13 of the Code is also of no help<\/p>\n
to the respondent.\n<\/p>\n
             For the reasons stated above this revision is allowed. Order<\/p>\n
passed by the courts below are set aside and the application moved by the<\/p>\n
petitioners for setting aside ex parte judgment and decree stands allowed.<\/p>\n
             The parties through their counsel are directed to appear before<\/p>\n
the learned trial court on 20.9.2008 for further proceedings in the case.<\/p>\n
21.8. 2008                                    (Vinod K.Sharma)\nrp                                                 Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Mohinder Singh & Anr vs Mohinder Singh & Ors on 21 August, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-155619","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nMohinder Singh & Anr vs Mohinder Singh & Ors on 21 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohinder-singh-anr-vs-mohinder-singh-ors-on-21-august-2008-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohinder Singh & Anr vs Mohinder Singh & Ors on 21 August, 2008 - 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