GURNAM SINGH Vs. BALKAR SINGH

JUDGEMENT

(1.) THE petition to set aside the ex parte decree was moved on the ground that she had not refused to receive the summons as was made to appear on the return endorsement made by the plaintiff. The refusal of the wife was stated to be sufficient to bind the defendant as well since the wife admittedly had a power of attorney from her husband and even the application had been filed only by the wife to set aside the ex parte decree on behalf of the husband. The fact of refusal was denied. The Court cannot make a legal presumption as prevailing over such denial and it should have satisfied itself that there was actually an attempted service and it was refused. For occasions when such refusals take place and when a party denies the fact of refusal, then Order 5 Rule 19 CPC details a procedure as to how the service shall be proved. Admittedly, the bailiff was not examined to substantiate the attempted service and show that there was actually a refusal. In a situation where the best evidence was not brought before the Court, it would only be appropriate to give a report to the party to let in evidence on merits in the suit. The suit is for specific performance of an agreement to sell in respect of immovable property. The case ought to require an adjudication on merits.

(2.) AT a previous hearing, I had directed the counsel for the petitioner also to take instructions on the willingness or otherwise of the party to deposit the amount purported to have been received as earnest money. The counsel says that the party will be willing to abide by any direction as to deposit as the Court gives. I am of the view that the orders passed by the courts below are required to be set aside. This shall, however, be on condition that the petitioner deposits in Court to the credit of the suit an amount of Rs. 1,75,000/ -. The same shall be deposited in a nationalized bank to such period as the trial Court may fix having due regard to the likely period for disposal of the amount. The party to whom the amount shall go shall ultimately depend on the outcome of the suit and the Court shall grant appropriate directions at the relevant time when the case is finally decided. If the amount is not deposited within a period of 4 weeks from the date of receipt of copy of this order, as directed, the order passed already shall stand restored. The revision petition is disposed of as above. The Court shall endeavour to dispose of the case as expeditiously as possible.