BASHIRI Vs. HANDU

JUDGEMENT

(1.) The present revision petition is directed against the impugned orders dtd. 1/2/2014 and 11/1/2016, whereby the application dtd. 30/10/2008 under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte judgment and decree dtd. 22/12/1986, has been dismissed.

(2.) Mr. Rajesh Lamba, learned counsel appearing on behalf of the petitioner submitted that the respondent-plaintiff-Handu, filed the suit for permanent injunction, in the year 1985, by impleading the petitioner as defendant by giving two addresses i.e. one Village Ghorawali and second Village Mundera Near Pinangwan, Ferozepur Jhirka, District Gurgaon. As per the zimini order, the Court below has wrongly taken to be service of the petitioner as correct, for, the report of the Process Server, reveals that she had already left the village Ghorawali and staying in Village Mundera and thumb-impressions were of Chowkidar and not of the petitioner. On acquiring the knowledge regarding ex parte judgment and decree ibid, in the year 2008, she filed the application, but the same has erroneously been dismissed. The attention of this Court has also been drawn to the Ex.A-2 i.e. report of the summons, which revealed that the petitioner had left the village. The next date in the summons was 12/12/1985 and on that date, the trial Court passed the following order:-

(3.) I have heard learned counsel for the parties, appraised the paper book as well as the records of the Courts below, which was summoned on the last date of hearing and of the view that there is force and merit in the submissions of Mr. Lamba, for, the acknowledgment on the summons sent for 12/12/1985, was that she had already left Village Ghorawali and staying in Village Mundera and thumb-impressions were of Chowkidar and not of the petitioner, but the Court below proceeded ex parte, vide order dtd. 12/12/1985, extracted hereinabove. In my view, the Court below should not have proceeded the petitioner ex parte, but ought to have ordered for substituted service or other service. There is no compliance of Rule 17, 18, 19 of Order 5 of the Code of Civil Procedure, thus, there is misdirection. As regards the acquisition of knowledge, no concrete evidence has been placed on record to belie the assertions of the applicant.