SUMAN LATA Vs. KAMLA DEVI

JUDGEMENT

(1.) Having carefully read the cross-examination of respondent Kamla Devi and the deposition of the process server, I find no reason to disagree with the reasoning of the learned Additional District Judge, Gurdaspur in his order dated April 25, 2014 in concluding after appreciating the evidence on record that there was no proper service of summons on the respondent and therefore she should not have been proceeded ex parte. There is no discernible flaw in the reasoning found in para.13 of the impugned order holding that due procedure was not strictly followed by the process server in serving the defendant of the summons in the case. Breach of procedure of proper service of summons on the defendant laid down in Order 5 Rule 17 of the Code of Civil Procedure read with Volume IV, Chpter 7, Part B and Appendix I to Chapter 7 Part D of the Punjab and Haryana High Court Rules and Orders is fatal to the decree obtained ex parte. There is no error of law or fact in the impugned order. The order also promotes substantial justice between the parties for a decision of the lis on merits of the case arising out of a suit for specific performance of an agreement to sell property. In the present case the petitioner cannot be seen to win by default for lack of proper service on the vendor defendant.

(2.) No ground is made out to interfere under Article 227 of the Constitution which power and jurisdiction is neither original nor appellate.

(3.) In Shalini Shyam Shetty and Another v. Rajendra Shankar Patel, 2010 8 SCC 329 the Supreme Court observed that power under Article 227 is discretionary and has to be exercised very sparingly on equitable principles. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interestwhile in comparison Article 226 is meant for protection of individual grievances. The Court explained that power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. In Nibaran Chandra Bag v. Mahendra Nath Ghughu, 1963 AIR(SC) 1895 the Supreme Court observed: