DARSHAN SINGH Vs. MAGHAR SINGH

JUDGEMENT

(1.) THIS revision is against the order dated 4.5.1994 passed by Sub Judge I Class, Ludhiana whereby the respondents' application for setting aside the ex -parte decree dated 13.7.1987 has been accepted.

(2.) PETITIONER filed a civil suit against the respondents -his brothers claiming exclusive right in respect of the property which fell to his share on the basis of a family settlement. According to the petitioner, summons were issued for service of the respondent -Maghar Singh, who declined to accept the summons arid so the Court ordered for effecting service upon him through munadi. It is after due service that ex -parte proceedings were taken against respondent No. l and thereafter on the basis of evidence adduced by plaintiff -the petitioner that the Court passed ex -parte decree on 30.7.1987. It is the case of the petitioner that respondent No. 1 knew of the pendency of the suit and purposely did not put in appearance and now has come forward with a false plea that he had no knowledge of the pendency of the suit. This plea has been advanced so as to reopen the concluded controversy for no justifiable reason. Otherwise too, there is sufficient material on record in the form of evidence that respondent No. 1 had knowledge of the suit and so the application filed by him for settling aside the ex -parte decree was clearly barred by limitation. Respondents' counsel by way of reply controverted the various factual aspects highlighted by the petitioner as well as made legal submissions on the basis of judicial pronouncements urging that the impugned order does not call for any interference. Elaborating, the counsel read over the various interim orders passed by the Court before ordering service by munadi and made pointed reference to the fact that though the order of the Court for effecting service by registered post was not complied with by the petitioner yet somehow the Court resorted to ordering service by munadi. According to the counsel for the respondents, infact there was no order passed by the Court that the respondent be proceeded ex -parte.

(3.) SUMMONS for service of respondents in the first instance were issued on 28.10.1986 for 24.12.1986 on filing of process fee and registered covers and copy of the plaint within three days. On 24.12.1986, the Presiding Officer had gone to undertake training and so it was recorded in the order of the Court that the defendants were not served. They again were ordered to be summoned on 2.12.1987 on old process fee. As per report, Pritam Singh was served but Maghar Singh -defendant refused to accept service. It was thus ordered that defendant be served through registered cover. But these summons could not be issued as less stamp fee was deposited by the plaintiff. On the next day of hearing, Court ordered for effecting service through munadi. It is on the receipt of the report that service had been effected through munadi that the Court proceeded further with regard to the recording of evidence of the plaintiff. It is the case of respondent -Maghar Singh that he had no knowledge of the pendency of the suit or of the ex -parte decree and as soon as the same came to his knowledge, he applied for setting aside the same and this way the application was within limitation. The trial Court on the basis of the pleadings framed the following issues and permitted the parties to adduce evidence: -