GURMAM KAUR AND ORS. Vs. KULWANT SINGH

JUDGEMENT

(1.) The respondent filed the suit for possession by way of specific performance of the agreement to sell dated 24.07.2002 regarding the suit land, which was agreed to be sold for a sum of Rs. 2,50,000/-, out of which Rs. 2 lacs were received by the petitioner as earnest money and the balance was to be paid on the date fixed for execution of the sale deed, i.e. 15.12.2003. The defendant Tara Singh was served through munadi, but no-one appeared on his behalf and was proceeded against ex parte. The Trial Court decreed the suit on 14.10.2004 after recording the ex parte evidence of the plaintiff, directing the defendant to execute the sale deed in favour of the plaintiff within two month on payment of the balance sale consideration. The defendant filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short "CPC") for setting aside the ex parte decree alleging that he had never been served in the suit nor he ever refused to receive the summons. The said application was contested by the plaintiff by filing reply and the Trial Court, vide its order dated 12.04.2013, dismissed the application after appreciation of the evidence led by the parties on the issue as to whether there exists sufficient ground to set aside the judgment and decree dated 14.10.2004. The appeal filed by the defendant against the order of the Trial Court dated 12.04.2013 was also dismissed on 23.10.2013 and hence, the present revision petition has been filed.

(2.) Counsel for the petitioners has submitted that the defendant was not served in person as there is no service through registered post and the service through munadi is the last mode of service which can be resorted to when the defendant is found avoiding service. In support of his submissions, he has relied upon a decision of this Court in the case of Dhanna v. Mewa Devi, 2011 2 CivCC 160 .

(3.) On the other hand, learned counsel for the respondent has submitted that the learned Trial Court had recorded an order on 17.03.2004 about the receipt of summons without service with the report that the defendant has been evading the service, therefore, it was decided to effect service upon him through affixation and munadi. The munadi was duly effected and on 10.06.2004 and the defendant was proceeded against ex parte. It is further submitted that the applicant-petitioners had examined Dharam Singh Chowkidar as AW1 who has tendered his affidavit alleging that the Process Server never came to their village for the purpose of service upon the defendant, but in his cross-examination, he admitted that a person came from the Court who took his signatures on the summons for getting the service of Tara Singh effected, which was accepted by the Court as an admission qua report Ex. R4.