Sukhdev Singh vs Amarjit Singh And Ors
2023 Latest Caselaw 11790 P&H

                                                          Neutral Citation No:=2023:PHHC:099962




           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH
108                                                  2023:PHHC:099962

                                                  SAO-73-2017 (O&M)
                                                  Date of decision: 03.08.2023

SUKHDEV SINGH                                               ..Petitioner

                                    Versus

AMARJIT SINGH AND ORS                                       ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Rajesh Bhateja, Advocate for the appellant.

Mr. S.S. Sidhu, Advocate for respondents.

ANIL KSHETARPAL, J(Oral)

1. Through this appeal, the plaintiff (petitioner herein) assails the

correctness of order passed by the First Appellate Court while allowing first

appeal against dismissal of application under Order IX Rule 13 of the Code

of Civil Procedure, 1908 (hereinafter referred to the 'CPC') by the trial

Court.

2. Originally, the plaintiff's suit for possession by way of specific

performance of the agreement to sell was ex parte decreed on 02.04.2008.

The defendants through their power of attorney Sh. Zora Singh filed an

application under Order IX Rule 13 of CPC on 18.07.2009 with a prayer to

set aside the ex parte judgment and decree dated 02.04.2008. The application

was dismissed by the trial Court on 23.12.2014, which as noticed above has

been set aside by the First Appellate Court vide judgment dated 17.07.2017.

3. This Bench has heard the learned counsel representing the

parties at length and with their able assistance perused the paperbook.

4. The learned counsel representing the petitioner while referring

to the deposition of Sh. Zora Singh submits that the defendants as well as

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their attorney had the knowledge of the proceedings of the suit, and

therefore, the Court has wrongly set aside the ex parte decree. He submits

that Sh. Zora Singh has admitted that he did not accept the summons though

it was tendered to him. He further states that he immediately informed the

defendants about the institution of the suit and has been watching the

proceedings of the suit. On the basis of the aforesaid statement, the learned

counsel representing the petitioner prays for acceptance of the appeal.

5. On the other hand, the learned counsel representing the

respondent submits that the parties are closely related as Sh. Sukhdev

Singh's sister is married to Sh. Gurmail Singh. It has been submitted that Sh.

Sukhdev Singh knew about the fact that the defendant No.2 and 3 are

residing in the United States of America, however, in the suit, their postal

address was of village Moranwali, Tehsil and District Faridkot. He further

submits that the Court's process server as well as the postman informed the

Court that the defendants are not residing in the country, however, still the

Court proceeded against ex parte on publication of notice in the newspaper

'Des Sewak', which does not have circulation in the United States of

America.

6. This Court has considered the submissions of the learned

counsel representing the parties.

7. It is not in dispute that in the suit for possession by way of

specific performance of the agreement to sell, defendants did not implead

Sh. Zora Singh, hence, Sh. Zora Singh did not receive the summons. It is

also not in dispute that the process server as well as the postman in response

to the notices sent by the Court, reported that the defendants are residing out

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of the country. Still, the Court rather than insisting on the plaintiff to furnish

the correct address of the defendants, allowed the application under Order V

Rule 20 of CPC while ordering service through publication in a newspaper

which does not even have a pan India circulation.

8. In such circumstances, the First Appellate Court on appreciation

of evidence has drawn a plausible conclusion, which does not require

interference in the appeal.

9. Hence, dismissed, accordingly.

10. All the pending miscellaneous applications, if any, are also

disposed of.

August 03rd, 2023                               (ANIL KSHETARPAL)
Ay                                                    JUDGE

Whether speaking/reasoned               :       Yes/No
Whether reportable                      :       Yes/No




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