GURDEV SINGH Vs. BIRO

JUDGEMENT

(1.) The instant revision petition has been filed under Article 227 of the Constitution of India for setting aside of the order dtd. 18/8/2016 passed by learned Civil Judge (Jr. Divn.), Batala (Annexure P/10) vide which an application filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short, 'the Code') by the petitioner/defendant No.3 for setting aside judgment and decree dtd. 11/11/2013 (Annexure P/5) was dismissed by the Trial Court Batala vide Annexure P/10 and the appeal preferred against the aforementioned judgment and decree also met the same fate vide order of the learned Additional District Judge, Gurdaspur (Annexure P/12).

(2.) Learned counsel appearing for the petitioner contends that the impugned orders are patently erroneous having been passed without appreciating the material on record in the right perspective. Learned counsel for the petitioner submits that while effecting service of summons, the process server neither made any attempt to serve the petitioner personally nor did he record his satisfaction to the effect that there was no likelihood of the petitioner being found at his residence within a reasonable time. He submits that a perusal of the report of the process server which has been annexed as Annexure P-2 makes it amply clear that there had been gross violation of the provisions of order 5 Rule 15 of the Code by serving summons directly on Narinder Kaur on behalf of the petitioner. Thus the service so effected in the above said manner could not be said to be effective service in the eyes of law. Learned counsel further argued that in fact it was a ploy and calculated move on the part of respondent No.2 who colluded with the plaintiff to get the petitioner proceeded against ex-parte in the suit in order to deprive him of his property. It was still further argued that the counsel who allegedly put in an appearance on behalf of the petitioner in the suit before the Court below was neither engaged nor authorised by the petitioner as the power of attorney filed did not bear the signatures of the petitioner. Learned counsel submitted that the petitioner had been affixing his thumb impression on all documents in the ordinary course of business and even otherwise and hence the question of the petitioner signing the power of attorney did not arise. Learned counsel submitted that in the circumstances there could be no manner of doubt that the power of attorney was forged and fabricated document. He still further submitted that the clerk namely Santokh Singh of the counsel Mr. G.S. Parmar, Advocate, who stepped into the witness box as RW1 brought only a few pages of the diary of Advocate G.S. Parmar instead of the whole diary by giving an excuse that it was untraceable. He submitted that the Trial Court erred in not considering the material contradictions in his testimony including the cuttings and wrong entries in some of the pages of the diary so produced before it. He submitted that one of the dates which was mentioned in the pages of the aforesaid diary, was not even the date of hearing of the suit before the Trial Court. Furthermore, the petitioner in his examination-in-chief had categorically stated that the power of attorney was a forged and fabricated document as it did not bear his signatures. However, the said fact went unchallenged as no question or suggestion qua the aforementioned was put to the petitioner during his cross-examination. In support, learned counsel has placed reliance upon Rukhmani Vs. Vasudev : 2020(4) RCR (Civil) 365; Atar Singh Vs. District Judge, Ghaziabad and others : 2011(3) RCR (Civil) 476; Mithlesh Vs. Punjab National Bank : 1995(25) ALR 293; Smt. Sheona Vs. Smt. Maro and others : 2015(1) RCR (Civil) 247 and Vinergy International Pvt. Ltd. Vs. Dimple Dineshbhai Shah 2017 AIR (Bombay) 109.

(3.) Per contra, learned counsel appearing for the caveator/respondent No.1 while controverting the submissions made by the counsel opposite, vehemently contended that the petitioner was duly served through Narinder Kaur, who accepted the summons on his behalf and she was none other than his own mother. He submitted that the petitioner in his cross-examination had admitted that he and his mother i.e. Narinder Kaur were living in the same house and had a joint mess. Therefore, it was abundantly clear that the petitioner had been duly served and also had knowledge not only about the institution of the suit in question but also about the dates of hearing before the Courts below. He still further submitted that the petitioner in his cross examination had admitted that he was a literate person, however, strangely he had chosen to come up with a false version that he had been affixing his thumb impression on documents in ordinary course of business. He submitted that even if for the sake of arguments, it was believed that the petitioner had all along been affixing his thumb impression in the ordinary course of his business on documents, it was incumbent upon him to bring on record at least some cogent evidence in the form of any document which had been executed and attested by him during the relevant period when the power of attorney in question was filed in the suit or prior thereto which he failed to do. Learned counsel submitted that in the absence of any such document having been brought on record, the Trial Court had rightly drawn an adverse inference against him. It was also vehemently submitted that in order to succeed the petitioner was required to stand on his own legs to prove his case beyond reasonable doubt by leading some cogent evidence specifically when fraud had been alleged by him. Learned counsel submitted that in the circumstances, the Courts below had not erred while passing the impugned orders