ROOP RAI TIMBER WORKS Vs. KAMALJIT KAUR

JUDGEMENT

(1.) The plaintiff petitioners filed a suit for declaration that the receipt dated 11.11.1982 executed by them in favour of the defendant-respondent was illegal, void, fraudulent, involuntary and without consideration and was thus not binding on the plaintiff-petitioners. The suit was registered on 24.1.1983 and the defendant-respondent was ordered to be summoned for 30.3.1983. According to the record, she was served for the said date and one Devinder Singh appeared as her General Attorney. The case was adjourned to 12.4.1983 for written statement. On 12.4.1983 as well Devinder Singh General Attorney, put in appearance for the defendant-respondent. The matter was again adjourned to 22.4.1983. On that date, no one appeared for the defendant-respondent and thus ex-parte proceedings were taken against her. Ultimately an issue was framed and the case was adjourned to 12.8.1983 ex-parte evidence of the plaintiff petitioners. It was on that date that the defendant-respondent filed an application for setting aside ex-parte proceedings.

(2.) The learned trial Judge framed the usual issue whether there was sufficient cause to set aside the ex-parte proceedings against the defendant-respondent. After recording evidence, the learned Judge took the view that the oral evidence of the process-server had to be believed against the defendant-respondent, for her denial was not trustworthy, especially when the signatures appearing on the application and the signatures appearing on the summons appeared to be similar. He further took the view that the presence of Devinder Singh for the defendant-respondent on the two dates fixed in the case showed that she had been served and that her statement that Devinder Singh was not her Attorney could not be believed in the absence of documentary evidence in that regard. Yet, the learned trial Judge taking the view that the defendant-respondent was otherwise entitled to participate in the trial from the stage when the plaintiffs evidence had yet to begin, no damage was going to be caused to the plaintiff petitioners if the ex-parte proceedings are set aside and the defendant-respondent is permitted to file her written statement also. He thus, in the circumstances, allowed the prayer by awarding Rs. 100/- as costs to the plaintiff-petitioners. The plaintiff-petitioners are aggrieved against the said order.

(3.) Having heard the learned counsel for the parties, I am of the view that the order need be maintained though on different grounds. When for the first time on 30.3.1983, Devinder Singh had put in appearance, the Court did not insist on his producing the power of Attorney in original or even an attested copy thereof. His purporting to be the General Attorney of the defendant-respondent was accepted by the bare word of mouth. That was highly an unsatisfactory way of taking the defendant-respondent to be present substitutedly for two dates. On this aspect, there is miscarriage of justice for the defendant-respondent could not be put to the proof to show that Devinder Singh had not been authorised by her to put in her appearance on her behalf. Rather it was the duty of the Court to see that Devinder Singh had put in appearance duly authorised on her behalf. In the absence of such caution having been exercised, this factor cannot weigh against the defendant-respondent.