SATWANT KAUR & ORS Vs. KULDEEP SINGH

JUDGEMENT

(1.) The present revision is directed against the impugned orders dtd. 13/9/2016 (Annexure P-3) and 2/12/2016 (Annexure P-1) of the trial Court and the Lower Appellate Court, whereby the application and the appeal preferred by the petitioner-defendants for setting-aside the ex-parte judgment and decree dtd. 24/11/2001 in a suit for specific performance of the agreement to sell, have been dismissed. Respondent-plaintiff instituted the suit for specific performance of the agreement to sell dtd. 7/11/1997 stated to have been executed by husband of petitioner No.1 and father of petitioner Nos.2 and 3, whereby land measuring 51 kanals 9 marlas was agreed to be sold for a consideration of Rs.1,50,000.00 per killa against the payment of Rs.7,00,000.00 as earnest money. On receipt of the suit, notice was issued on 8/12/1998. Process Server reported that the summons issued to petitioner Nos.1 and 3 were refused, whereas petitioner No.2 avoided service. On the basis of the said report, order for effecting service upon the petitioners through munadi and affixation for 23/1/1998 was passed and on 23/1/1999, the petitioners were proceeded ex-parte, resulting into ex-parte judgment and decree dtd. 24/11/2001.

(2.) Mr. Sanjiv Gupta and Mr.Rakesh Gupta, learned counsel appearing on behalf of the petitioner-defendants submitted that the respondent-plaintiff sought the execution of the ex-parte judgment and decree and on receipt of the notice in the execution application, petitioners came to know about the ex-parte judgment and decree and immediately moved the application dtd. 23/9/2016 (Annexure P-4).

(3.) The aforementioned application was opposed. The trial Court after giving opportunity to the parties to lead evidence, dismissed the application. Appeal laid before the Lower Appellate Court was also dismissed. The aforementioned orders are not sustainable in the eyes of law, for, there is no compliance of provisions of Rule 19A of Order 5 CPC, which envisage simultaneous issuance of summons for service by post in addition to personal service. No such effort was made by the trial Court and, therefore, there was deviation of the provisions of law. The primary ground for rejection of the application was that Chaman Lal retired Process Server appeared as DW-1 and deposed on oath that he had gone to the house of the petitioners along with Village Chowkidar. The petitioners stepped into the witness box and also led evidence of Ram Singh Chowkidar, who deposed that he was an illiterate person and did not know how to read and write any language but appended his thumb impression only. He further deposed that about 16-17 years back, a person had come to him representing himself to be Process Server in connection with some official work and he wanted to get his presence verified, but obtained the thumb impression on some papers and, therefore, there was defect in the report of the Process Server. The courts below have adopted a hyper- technical approach merely because Ram Singh was working as a Chowkidar for the last 40-45 years. Mr. Gupta also pointed out certain facts with regard to the perpetual litigation by the relatives of plaintiff Kuldip Singh. Jit Kaur (mother of Kuldip Singh), on 17/7/1998, had filed a suit for specific performance of the agreement dtd. 8/11/1994. The same was dismissed on 9/9/2006. Appeal filed was also dismissed on 24/2/2010. Khasra number was common in both the aforementioned suits, i.e., present suit and suit filed by the mother. Kuldip Singh filed the suit against the petitioners for recovery of Rs.3,00,000.00 on the basis of the pronote dtd. 20/9/1998 in the month of September, 2001 which was dismissed by the trial Court in November, 2006 and the appeal was filed in May, 2008. Teja Singh, father- in-law of Kuldip Singh filed a suit on 12/2/2005 in which they obtained the ex-parte judgment and decree and this Court in Civil Revision No.5768 of 2014 allowed the same and set-aside the ex-parte judgment and decree. All these aforementioned facts reflect the mens rea and the intention of the respondent-plaintiff. Per contra, Mr. Arun Abrol, learned counsel for the respondent- plaintiff supported the orders under challenge and says that the facts of each case have to be examined. The factum of other suits is not part and parcel of the record of the court and, therefore, cannot be looked into. The petitioner- defendants have failed to explain the delay in filing the application for setting-aside the ex-parte judgment and decree as they had the knowledge and the same was intentionally avoided to tire out the plaintiff. Chaman Lal Process Server had been called and was consistent in his statement. He stated that the summons in the names of Hardeep Singh son of Sarja Singh, Sant Kaur wife of Sarja Singh and Kulwinder Singh son of Sarja Singh were marked to him and also with regard to service effected by munadi and affixation. Non-compliance of provisions of Rule 19A of Order 5 CPC, in such circumstances, would pale into insignificance and, thus, urged this Court for dismissal of the revision petition. I have heard the learned counsel for the parties, appraised the paper book and of the view that there is force and merit in the submissions of Mr. Gupta.