CHARAN SINGH Vs. DEWAN SINGH

JUDGEMENT

(1.) THE facts giving rise to this revision petition No. 151 of 1971 and the connected regular Second Appeal No. 218 of 1971 are these. On 4th May, 1966 one Gurnam singh sold by a registered-deed, agricultural land measuring 10 Kanals and 2 marlas, situate in village Rachhin, District Ludhiana, to Joginder Singh and his three brothers Gurdial Singh, Mukhtiar Singh and Gurcharan Singh (sometimes called Charan Singh) for Rs. 4,000/ -. On 1st May 1967, Diwan Singh filed a suit for pre-emption on the ground that he was the uncle of the vendor and, therefore, had a preferential right to purchase this land. It appears that out of the vendees, mukhtiar Singh and Gurcharan Singh were employed in the Army. During the pendency of the suit, on 27th January 1968, an application was sent by Mukhtiar singh from the place where he was serving in the Army, through his Commanding officer, to the learned Sessions Judge, Ludhiana saying that a case had been filed against him by Diwan Singh and proceedings in the same be stayed under the soldiers' Litigation Act. This application was first placed before the Sessions Judge on 31st January 1968 and it then came up before the trial Judge on 2nd February 1968, who directed that it should be placed on the file for necessary orders. But it appears that no orders were ever passed on this application. Twice efforts were made to serve Mukhtiar Singh and Gurcharan Singh--first on 31st July, 1967, and then on 1st September, 1967. On the first occasion, it was reported by the process-server that Gurcharan Singh was employed in the Army at Chandigarh and likewise Mukhtiar Singh was in Ferozepore. A similar report was made on 1st september 1967. The fact remains that both of them were not duly served. On 5th december, 1967, an application under Order 5, Rule 14, Code of Civil Procedure, was made by Diwan Singh that these two defendants be served through their brother Joginder Singh, defendant No. 1. It was stated that no proper service could be effected upon them and their correct addresses were not known to the plaintiff. Besides, they had no agent in the village and their brother Joginder Singh was incharge of their property. On the same day, the trial Judge ordered that service on the said two defendants be effected under the provisions of Order 5, rule 14, Code of Civil Procedure, through their brother Joginder Singh, defendant no. 1. It was also directed that "summons in registered cover for defendants Nos. 3 and 4 be issued for 5th January, 1968". It is not quite clear from the order as to whether the learned Judge wanted that the summons be sent by registered cover to defendants Nos. 3 and 4 directly as well. In any case, that was not done and they were served through defendant No. 1, who, on 5th January 1968, was directed by the trial Judge to file a written statement on their behalf on 15th january, 1968. But admittedly, no such written statement was put in and after trial, the suit was decreed on 25th April, 1966. On payment of Rs. 4295/- to the vendees. On 14th May, 1968 an application under Order 9, Rule 13 and Section 151, Code of Civil Procedure was filed by Gurcharan Singh for setting aside this ex parte decree passed against him. His case was that he was in Army service and had not been duly serve. He had no knowledge about the suit.

(2.) THIS application was opposed by Diwan Singh, who pleaded that the applicant had been properly served in accordance with the provisions of Order 5, Rule 14, code of Civil Procedure. The application had been given to delay the execution of the decree.

(3.) AFTER evidence was led on the only issue framed in the case, namely, whether the applicant was not duly serve, the trial Judge dismissed the application holding that proper service had been effected on Gurcharan Singh through his brother joginder Singh under Order 5, Rule 14, Code of Civil Procedure.