BISHAN SINGH Vs. AMARJIT SINGH AND OTHER

JUDGEMENT

(1.) A bird's eye view of the facts leading to the filing of this petition for revision for settling aside the order of the Court of Shri Jagwant Singh, Additional District Judge, Jullundur, dated August 13, 1970, upholding the order of the trial Court refusing to set aside the ex -parte decree that had been passed against the defendant -petitioner, may first be taken. One Updaman Singh gave away his property in exchange to Om Parkash respondent by a registered deed of exchange on July 18, 1959. The present petitioner purchased the property from Om Parkash by registered sale -deed, dated August 27, 1959 in February, 1961, Amarjit Singh son of Updaman Singh and one Lachhman Singh, a collateral of Updaman Singh, filed the usual suit for a declaration to the effect that the transfer of the property in question by Updaman Singh to Om Parkash by way of exchange would not bind the reversionary interest of the plaintiffs as the property was ancestral and the transfer was made without legal necessity Though the petitioner was not originally impleaded as a party to the suit, he was later added to the array of defendants on an objection taken up by Om Parkash in his written statement for annulling the onward transfer of the property by him to the petitioner It is admitted on both sides that at the time of the institution of the suit till the time of the passing of the ex -parte decree therein, the Petitioner was living in Kenya (East Africa). The plaintiff -respondents made an application to the trial Court under Order 5 Rule 14 of the Code of Civil Procedure for effecting service of summons of the suit on the present petitioner through his father Naranjan Singh, said to be in charge of the property in question. The application was allowed, and it is alleged that the summons addressed to the defendant -petitioner was served on his father Naranjan Singh. No contest was made by the petitioner and an ex -parte declaratory decree was granted by the trial Court on March 27, 1962 It is again not disputed that the father of the petitioner died in 1962, whereupon the petitioner came to India in that connection on November 2, 1962. The petitioner claims that he came to know of the ex -parte decree for the first time when he came to India on the above -mentioned occasion. It was within a few days thereafter, that is on November 5, 1962, that the petitioner made an an application to the trial court under Order 9 rule 13 of the Code for setting aside the ex -parte decree. The sufficient cause pleaded for setting aside the decree was that no proper service of the summons was effected on the petitioner. The application of the petitioner was dismissed by the Court of Shri G.D. Hans, Subordinate Judge, Nakodar, on November 13, 1967. The petitioner's appeal having been dismissed by the learned Second Additional District Judge (as already referred to), the petitioner approached this Court by way of this revision petition.

(2.) IN the Proceedings under Order 9 Rule 13 of the Code, the trial Court framed the following issues: - -

(3.) MR . Gurbachan Singh, Learned Counsel for the petitioner, has firstly contended that both the orders of the Courts below are vitiated on the ground that no finding had been recorded on issue No. 3, which was the crucial issue on which the fate of the application depended. I am unable to agree with him on this contention. If the trial Court found that the application for setting aside the decree was beyond limitation, he would not be legally called upon to decide the other issues. If, however, the application was held to be within time, and it was found that the petitioner had been validly served there would on the facts and circumstances of this case be no sufficient cause for setting aside the ex -parte decree. In the view I am taking of the matter in this case on merits, it is unnecessary to pursue this point any further. It appears to me that the Courts below have wholly misconstrued, misunderstood and misapplied the provisions of Order 5 Rule 14 of the Code. The conditions precedent for applying rule 14 of Order 5 are that : - -