GUDDI ALIAS KAMLESH Vs. KARTAR SINGH

JUDGEMENT

(1.) The petitioners are impugning the order dtd. 16/7/2016 (Annexure P-7) passed by the learned Additional Civil Judge Yamuna Nagar at Jagadhri, whereby applications filed by them under Order 9 Rule 13 CPC for setting aside the judgment and decree dtd. 9/4/2012 (Annexure P-4) and order dtd. 2/12/2009 (Annexure P-3) vide which they were proceeded against ex parte was dismissed.

(2.) Learned counsel for petitioner submits that the impugned order deserves to be set aside as it is contrary to the established principles of law. He submits that after the death of defendant No.1-Chuhar Mal during the pendency of the suit, Jai	Kishan, son of defendant No.1, moved an application for impleading himself as Legal Representative (hereinafter referred to as 'LRs') of late Chuhar Mal. In reply to the said application,	respondent No.1-plaintiff provided a list of other LRs of late Chuhar Mal along with names and addresses. Resultantly, the trial Court thereafter impleaded the LRs as per the list provided by respondent No.1. Learned counsel submits instead of issuing summons through registered AD, the LRs were then summoned directly through munadi in violation of the provisions of Order 5 Rule 20 CPC. Learned counsel vehemently argued that the trial Court failed to appreciate that respondent No.1 had intentionally furnished incorrect addresses of the LRs and not only this, the name of one of the LRs Balinder Kumar, husband of Sunita, was intentionally mentioned as Virender. He submitted that in the aforementioned circumstances, the trial Court had erred in proceeding ex parte against all the LRs except Jai Kishan vide order dtd. 2/12/1999, even though no valid service had been effected on them. He submitted that thereafter even Jai Kishan was proceeded against ex parte from which it was discernible that Jai Kishan had colluded with respondent No.1 so as to prevent the other LRs from appearing before the trial Court. Learned counsel argued that since the LRs had not been properly served and no opportunity of hearing had been given to them, hence, it could not be said that the estate of late Chuhar Mal had been properly represented. In support learned counsel places reliance upon the judgment passed by the Division Bench of this Court in the matter of Saroj Vs. Rajender Kumar 2013(3) RCR (Civil) 451 and judgment passed by this Court in the matter of Shri Chetan Vs. Shri Narain Singh, 2012 (58) RCR (Civil) 365.

(3.) Per contra, learned counsel for respondent No.1 submitted that the LRs of late Chuhar Mal including the petitioners were duly served through munadi as was evident from the report of the Process Server. He further submitted that even otherwise it was the duty of the LRs to get themselves impleaded and the burden qua the same did not lie on the plaintiff. He argued that the estate of late Chuhar Mal was duly represented by his son Jai Kishan and as per the settled law, once the estate was represented by even one of the LRs, the other LRs need not have been impleaded. Learned counsel while disputing the submissions made by the counsel opposite qua the alleged collusion between Jai Kishan and respondent No.1 submitted that the factum of collusion had not even been pleaded by the petitioners in the application under Order 9 Rule 13 CPC. He further submitted that the respondent-plaintiff could not be blamed in case the LRs did not come on record. He submitted that Sunita wife of Balinder Kumar had received copy of the summons in pursuance to the service through munadi, however, still for reasons best known to her, she failed to appear. He submitted that it was not the case of the petitioners that they had strained relations with Sunita. In support, learned counsel placed reliance upon the judgment passed by the Hon'ble Supreme Court in the matter of Sunil Poddar and others Vs. Union Bank of India, 2008(1) Civil Court Cases 696 (S.C.) ; the Division Bench of this Court in the matter of Sardara Singh and another Vs. Harbhajan Singh and others; Gurdev Kaur Vs. Gram Panchayat Balad Kalan and others and judgment of this Court in the matter of Jagsir Singh Vs. Mahasha Dev Raj.