HARBHAJAN SINGH Vs. LRS OF GARDHARA

JUDGEMENT

(1.) This appeal is directed against order dated 16-9-95 passed by the Additional District Judge, Raisinghnagar in Civil Misc. Case No. 67/93, whereby an application preferred by the Appellants for setting aside ex parte judgment and decree dated 29-3-89 passed in Civil Suit No. 3/83, stands rejected.

(2.) In the year 1983, the Respondent/Plaintiff filed a suit for specific performance of the contract against the Appellants/Defendants on the basis of an agreement to sell dated 29-3-79 alleged to have been executed by Shri Kewal Singh, the power of attorney holder of the Appellants/Defendants in favour of the Respondent/Plaintiff Gardhara Singh (since deceased) represented by his legal representatives, in respect of 241/2 bighas land comprising murabba No. 26 in chak 2 GB A, Tehsil Anoopgarh. The summons issued by the Court could not be served in ordinary course and therefore, on an application preferred on behalf of the Respondent/Plaintiff, the service upon the Appellants/Defendants was directed to be effected by way of substituted service i.e. by publication of the summon in the daily newspaper "Dainik Tribune" Hindi edition, published at Chandigarh. On publication of the summon in the "Dainik Tribune" as directed by the Court, vide order dated 15-1-88, the service upon the Appellants/Defendants was treated to be complete and since nobody appeared on their behalf when the matter was called out, the ex parte proceedings were ordered against them. Ultimately, the suit was decreed ex parte vide judgment and decree dated 29-3-89.

(3.) Aggrieved thereby, the Appellants/Defendants filed an application under Order IX, Rule 13, Code of Civil Procedure for setting aside the ex parte decree. It was stated therein that at the relevant time, when the suit was filed, the Appellant/Defendant Harbhajan Singh was residing at village Rodala, Tehsil Ajnala, district Amritsar and Appellant/Defendant Amritpal Singh was in defence service, however, the summons were not served upon them personally. The Appellants/Defendants submitted that in the suit filed, Miss Rana, the daughter of Harbhajan Singh was also impleaded as Defendant in the suit who at the relevant time was studying in Medical College at Amritsar and was staying in the hostel of the College. It was contended that no efforts were made on behalf of the Respondent/Plaintiff to find out the correct addresses of the Appellants/Defendants and the summons were sent by the Court for service in ordinary course only once. It was stated that even the Court directed for service being effected by registered post but the requisites were not filed by the Respondent/Plaintiff. It was further stated that earlier Court directed for publication of the notice in "Punjab Kesari" which was published in English and Gurumukhi but the Respondent/Plaintiff refused to get the notice published in the said newspaper. It was stated that the Defendant Amritpal Singh was employed in Indian Army and therefore, the service upon him could have been effected in ordinary course in accordance with law but no efforts whatsoever was made in this regard by the Respondent/Plaintiff. The Appellants/Defendants pleaded that they have very little knowledge of language Hindi and used to read the newspapers which are published in either Punjabi or English. It was contended that the ex parte proceedings ordered against them by effecting substituted service is illegal and violative of principles of natural justice.