UNION OF INDIA THROUGH THE SECRETARY REHABILITATION DEPARTMENT, NEW DELHI Vs. SMT. BISHAN DEVI AND ANOTHER

JUDGEMENT

(1.) BISHAN Devi, Plaintiff -Respondent No. 1, alleged that she is the owner of land measuring 324 Kanals 14 Marias as detailed in the head note of the plaint, which was allotted to her in lieu of the land left by her in West Punjab. She consequently claimed that she was the owner of Kharkana standing on the suit -land and the Union of India, Defendant No. 1, had no interest or title either in the suit -land or in respect of Kharkana standing thereon. She further alleged that in the month of October 1972 Shri T. S Bedi, Naib Tehsildar, Hoshiarpur, auctioned the Kharkana standing on the suit -land for Rs. 190/ - to Defendant No 2 at her back, which Defendant No. 1 was not competent to sell. On the basis of these allegations, she first served a notice under section SO of the Code of Civil Procedure (hereinafter referred to as "the Code") on Defendant No. 1 and the Collector, Hoshiarpur, and then filed the instant suit for declaration to the effect that she is the owner of the suit -land measuring 324 Kanals 14 Marias situated in village Dada, District Hoshiarpur, and the Kharkana standing thereon. She also claimed consequential relief of permanent injunction restraining the Defendant from auctioning the said Kharkana and for recovery of Rs. 190/ - which Defendant No 1 had realized from Defendant No. 2 Ram Chand by auctioning the Kharkana to him in October, 1972.

(2.) THE trial Court, vide its order dated 10 -1 -1974 directed the suit to be registered and summons to be issued to Defendants Nos. 1 and 2 on process fee for 1 -3 -1974. On that date, Pritam Singh Qanungo (Sales) appeared on behalf of Defendant No. 1 and requested for adjournment for filing written statement. Defendant No. 2, however, did not appear in spite of service and he was proceeded against expert. The case was then adjourned to 22 -3 -1974 but no one appeared on behalf of Defendant No. 1 on that date and, consequently, expert proceedings were ordered against it and the case was adjourned to 27 -4 -1974 for expert evidence On 16 -4 -1974, the District Attorney moved an application on behalf of Defendant No. 1 for setting aside the expert proceedings. It was averred therein that he has received instructions in this case for Defendant No. 1 on 11 -3 -1974 but the same had been wrongly linked with the file of another case instituted by Bishan Devi against Punjab State and, consequently, the District Attorney, being not aware of the date of hearing, could not appear in the instant suit After receiving reply to the application from the Plaintiff and evidence adduced thereon, the learned trial Court dismissed the same, vide order dated 27 -8 -1974.

(3.) THEREAFTER , ex parte evidence of the Plaintiff was received and the suit was decreed in her favour and against the Defendants by the learned Senior Sub Judge, Hoshiarpur, vide judgment and decree dated 23 -4 -1975. The Union of India preferred an appeal before the learned District Judge, Hoshiarpur but the same was dismissed, vide his judgment and decree dated 18 -2 -1977. Consequently, the present regular second appeal was preferred before this Court. The learned Counsel for the Appellant contended that the Appellant was not properly and duly served in the suit He invited my attention to the report on the summons at page 95 of the trial Court file, which shows, without doubt, that service of summons was effected on the Appellant but without a copy of the plaint Relying on Order v. Rule 2 of the Code, he contended that, since it was mandatory that the summons should have accompanied by a copy of the plaint or, if permitted, concise substance thereof and, since this provision had not been complied with, the service could not be deemed to be service in the eyes of law He further submitted that appearance of Pritam Singh Qanungo (Sales) on behalf of the Appellant before the trial Court on 1.3.1974 is of no consequence because the said Qanungo had no authority to put in appearance on behalf of the Appellant. He contended that, in the absence of a copy of the plaint, it was quite natural that the instructions received by the District Attorney from the Appellant got mixed with another suit filed by Respondent 2 against Punjab State He asserted that the order dated 27.8.1974 passed by the trial Court rejecting the application of the Appellant for setting aside the order dated 22.3.1974 proceeding against the Appellant expert, is not sustainable and has to be set aside.