MBHAR SINGH Vs. URMILA DEVI

JUDGEMENT

(1.) THIS revision petition has been filed by the Defendant against the order of the Additional Districts Judge, Jullundur, dated February 11(sic), 1974.

(2.) BRIEFLY the facts are that an ex -parte decree for possession of pre emption was passed against Mehar Singh Defendant on August 31, 1970. He filed an application for setting aside the ex -parte decree on November 28, 1970. It was contested on the ground that there were no sufficient grounds for setting aside the ex -parte decree and that it was not within limitation. The learned trial Court framed the following issues:

(3.) I have heard the learned Counsel but regret my inability to accept the contention in the circumstances of this case. The Appellate Court came to the finding that the Petitioner was duly served and that the summons was accompanied by a copy of the plaint. In revision petition, the Petitioner cannot be allowed to challenge the finding of fact. Even otherwise I have examined the matter and am not impressed with the contention of the learned Counsel. The summons was received by the Petitioner about the case sometime before July 14, 1070 in England. He wrote a letter to the Court on July 14, 1970, Exhibit R1, that he had received the summons issued on 29th ultim. Wherein the date of hearing was August 5, 1970. He further stated that he had to make adequate arrangements for his vast business to be looked after and to do that, many things were required to be done. He consequently prayed that the case should be adjourned till he was able to appear personally to answer the case. After the receipt of the said letter, the Court proceeded ex -parte against the Petitioner and ordered that the ex parte evidence be recorded on August 31, 1970. On that say, after recording the evidence the Court decreed the suit. From a perusal of the letter it is evident that the Petitioner never made a grievance that he was not served properly or that the summons was not accompanied by a copy of the plaint. In the application which he filed for setting aside ex -parte decree, he also did not say that the summons was not accompanied by a copy of the plaint. He only stated that proper service was not affected on him. In the circumstances It cannot be held that the summons was not accompanied by a copy of the plaint. It is a well established principle that in an application for setting aside an ex -parte decree, it is for the Defendant to prove that he was not duty served. Reference in this regard may be made to a decision of this Court in Kanshi Ram Mohan Lal v. Smt. Bhagwan Kaur, : A.I.R. 1970 P&H. 300 wherein Mehar Singh CJ , observed that it is for the Defendant to prove that he was not duly served and if be fails to do so, his application for setting aside the ex -parte decree on merit would fail. I am in respect ful agreement with the above said observations. The learned Counsel for the Petitioner made a reference to M.G. Das v. Bslli Mal : A.I.R. 1959 P&H 467 and M/s Parma Nand Bhahthia and Sons v. M/s Aakash(sic) Oil Mils, Bazur Gandoawala, Amritsar, (1976) 78 P.L.R. 485. Suffice to say that the observations in these case were nude in a different set of circumstances and the learned Counsel cannot derive any benefit from them.