Amrit Kaur (Since Deceased) Thru ... vs Inderpal Kaur And Others
2023 Latest Caselaw 3529 P&H

                                                                                    2023:PHHC:048611

                           CR-1187-2019 (O&M)                                             -1-


                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                CHANDIGARH

                                                                         CR-1187-2019 (O&M)
                                                                         Reserved on : 14.03.2023
                                                                         Date of Decision : 11.04.2023


                           Amrit Kaur (since deceased) through LRs                              ....Petitioners

                                                              VERSUS

                           Inderpal Kaur and Others                                        ....Respondents


                           CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                           Present :    Mr. Ashish Aggarwal, Sr. Advocate with
                                        Mr. Karan Singla, Advocate for the petitioners.

                                        Mr. Santosh Sharma, Advocate for the respondents.

                                                                 -.-

                           ALKA SARIN, J.

The present revision petition under Article 227 of the

Constitution of India has been filed for setting aside the impugned order

dated 10.01.2019 whereby the application under Order 9 Rule 13 CPC filed

by the defendant-respondents has been allowed.

The brief facts relevant to the present lis are that the plaintiff-

petitioner filed a suit for joint possession against the defendant-respondents

herein who are none-other than the daughter-in-law and grand-children of

the plaintiff-petitioner. The defendant-respondents were proceeded against

ex-parte and vide judgment and decree dated 03.09.2016 the suit was

decreed. The defendant-respondents filed an application for setting aside the

ex-parte order dated 28.08.2016 and the ex-parte judgment and decree dated TRIPTI SAINI 2023.04.11 10:16 03.09.2016. The Trial Court vide impugned order dated 10.01.2019 allowed I attest to the accuracy and integrity of this document Chandigarh 2023:PHHC:048611

CR-1187-2019 (O&M) -2-

the application and the ex-parte order dated 28.08.2016 as well as the ex-

parte judgment and decree dated 03.09.2016 were set aside and the suit was

restored to its original number. Hence, the present revision petition.

Learned senior counsel appearing on behalf of the plaintiff-

petitioner would contend that as far as the minors are concerned, since they

were not represented by a guardian they cannot be considered defendants

and no application under Order 9 Rule 13 CPC would be maintainable at

their behest. In support of his argument, learned counsel has relied upon the

judgment of Gauhati High Court in the case of Budhai Nepal Chandra

Lalit Moban Saha Firm & Anr. Vs. Sudhangshu Ranjan Dev & Ors.

[AIR 1976 (Gauhati) 7] and Gendalal Vs. Sitabai Bhagwat [AIR 1957

(Madhya Bharat) 10]. It is further the contention of the learned counsel

that where the mother is concerned, she was duly served and that as per the

summons dated 24.06.2015 she had flatly refused and affixation was done.

Thereafter, even munadi was effected and as per the report dated

22.07.2015 it has been stated that after effecting the munadi a copy of

summons were also affixed on the house of the addressee.

Per contra, learned counsel for the defendant-respondents has

contended that not only the minors were never served, even the mother Smt.

Inderpal Kaur, defendant-respondent No.1 herein, was never served.

Learned counsel has pointed out that as per the summons appended with the

petition as Annexure P-6 collectively, it is apparent that on 24.06.2015 the

refusal and affixation of the plaint was not witnessed by any person. Even

the munadi and affixation after effecting munadi was also not witnessed by

any person. In view thereof, the ex-parte order dated 28.08.2016 as well as TRIPTI SAINI 2023.04.11 10:16 I attest to the accuracy and integrity of this document Chandigarh 2023:PHHC:048611

CR-1187-2019 (O&M) -3-

the ex-parte judgment and decree dated 03.09.2016 have rightly been set

aside.

Heard.

In the present case even if the arguments of the learned counsel

for the plaintiff-petitioner is accepted that no application is maintainable at

the behest of the minors, however, a perusal of the report of the summons

by the Process Server as well as the munadi report clearly reveals that the

same have not been witnessed by anyone. In the absence of any witness, it

cannot be said that the defendant-respondents stood duly served. Order 5

Rule 17 of CPC reads as under :

"17. Procedure when defendant refuses to accept

service, or cannot be found - Where the defendant or

his agent or such other person as aforesaid refuses to

sign the acknowledgment, or where the serving officer,

after using all due and reasonable diligence, cannot

find the defendant, [who is absent from his residence at

the time when service is sought to be effected on him at

his residence and there is no likelihood of his being

found at the residence within a reasonable time] and

there is no agent empowered to accept service of the

summons on his behalf, nor any other person on whom

service can be made, the serving officer shall affix a

copy of the summons on the outer door or some other

conspicuous part of the house in which the defendant

ordinarily resides or carries on business or personally TRIPTI SAINI 2023.04.11 10:16 I attest to the accuracy and integrity of this document Chandigarh 2023:PHHC:048611

CR-1187-2019 (O&M) -4-

works for gain, and shall then return the original to the

court from which it was issued, with a report endorsed

thereon or annexed thereto stating that he has so

affixed the copy, the circumstances under which he did

so, and the name and address of the person (if any) by

whom the house was identified and in whose presence

the copy was affixed."

In the absence of the service of summons/affixation/munadi

having been made as per the procedure prescribed, it cannot be said that the

defendant-respondents stood duly served.

In Bhajan Singh Arora vs. IVth Additional Judge to the

Court of District Judge, Bilaspur & Ors. [AIR 2011 Chhattisgarh 89] a

Division Bench of the Chhattisgarh High Court, after noticing the

judgements in Budhai Nepal (supra) and Gendalal (supra), held that an

application under Order 9 Rule 13 CPC for setting aside an ex-parte decree

against a minor or a person of unsound mind, who was not represented

through his next friend or duly appointed guardian, is maintainable. This

Court deems it appropriate to follow the ratio of the decision in Bhajan

Singh's case (supra). A minor is entitled to an indulgent consideration so

far as procedural lapses are concerned at the hands of the Court.

Thus, in the present case the application under Order 9 Rule 13

CPC was maintainable on behalf of the minors. Further, the application

deserved to be allowed on the ground that even defendant-respondent No.1

was not properly served.

TRIPTI SAINI 2023.04.11 10:16 I attest to the accuracy and integrity of this document Chandigarh 2023:PHHC:048611

CR-1187-2019 (O&M) -5-

In view of the above, the impugned order setting aside the ex-

parte order as well as the ex-parte impugned judgment and decree is upheld.

The present revision petition, which is devoid of any merit, is dismissed.

Pending applications, if any, also stand disposed off.

Dismissed.

                           11.04.2023                                              (ALKA SARIN)
                           tripti                                                     JUDGE

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

TRIPTI SAINI 2023.04.11 10:16 I attest to the accuracy and integrity of this document Chandigarh