Punjab-Haryana High Court
Parveen Kumar vs Harinder Singh And Another on 2 August, 2024
Neutral Citation No:=2024:PHHC:099009
(O&M) -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-3306-2024 (O&M)
Date of Decision:-02.08.2024
Parveen Kumar
... Petitioner
Versus
Harinder Singh and Another
... Respondents
-.-
CORAM: HON'BLE MRS. JUSTICE RITU TAGORE
Present:- Mr. Aditya Dassaur, Advocate
for the petitioner.
****
RITU TAGORE, J. (Oral)
1. The challenge in this petition, filed under Article 227 of the
Constitution of India, is to the order dated 19.12.2023 (Annexure P-8),
whereby application under Order 9 Rule 13 read with Section 151 of Code of
Civil Procedure, 1908 (in short 'CPC') filed by the petitioner for setting
aside ex-parte judgment and decree dated 02.02.2019 (Annexure P-2) has
been dismissed and order dated 16.05.2024 (Annexure P-11) whereby the
appeal filed by the petitioner, has also been dismissed.
2. Learned counsel for the petitioner contends that respondent No.1
instituted a Civil Suit for Specific Performance of Agreement to Sell dated
15.06.2016, titled as 'Harinder Singh vs. Parveen Kumar', against the
petitioner, asserting that, pursuant to said agreement to sell, the petitioner had
agreed to sell his residential house, as detailed in the plaint (Annexure P-1) but
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subsequently refused to execute the sale deed, thereby breaching the agreement
to sell. It is stated that the suit was decreed ex-parte against the petitioner vide
judgment and decree dated 02.02.2019 (Annexure P-2). It is further submitted
that perusal of record reveals that the petitioner was never served in accordance
with law and was erroneously proceeded ex-parte, based on the presumption of
service through registered cover after a thirty day waiting period without its
return.
3. Learned counsel further submits that it was only on 15.11.2019 when
the Bailiff along with respondent No.1 arrived at petitioner's property with a
warrant of possession, petitioner became aware of the judgment and decree
passed against him. Thereafter, the petitioner obtained the relevant
documents pertaining to the judgment and decree dated 02.02.2019, and filed an
application under Order 9 Rule 13 CPC read with Section 151 of CPC
(Annexure P-4) to set aside the judgment and decree and ex-parte
proceedings against him. The counsel submits that respondent contested this
application by filing reply (Annexure P-5). Both the parties led evidence on
the application, and learned trial Court vide order dated 19.12.2023 (Annexure P-
8), erroneously dismissed the application on the ground of being barred by the law
of limitation. Learned counsel further submits that learned Appellant Court also
dismissed the appeal (Annexure P-9) filed by the petitioner vide order dated
16.05.2024 (Annexure P-11), without duly appreciating the facts and evidence on
record, relying instead on surmises and conjectures.
4. Learned counsel further submits that petitioner was primarily
non-suited on the ground of limitation due to the selective consideration of
the petitioner's statement, wherein he acknowledged becoming
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aware of the judgment and decree passed against him on 15.09.2019. The
learned counsel contends that the learned trial Court erred by evaluating this
portion of the petitioner's testimony in isolation and not in conjunction with
his entire statement, wherein he explicitly testified that he became aware of
the judgment and decree on 15.11.2019 and filed the application on
16.11.2019. The learned counsel asserts that it is well established principle
of law that entire testimonial account of a person is required to be considered
and not a part of it. He further submits that learned trial Court erred in
assuming that the petitioner obtained the copy of judgment and decree on
04.02.2019, while conveniently overlooking the petitioner's application
(Annexure P-10) which categorically states that said copy was applied for by
the respondent.
5. It is contended by learned counsel that the learned Courts below
erred in failing to ascertain whether petitioner was duly served in accordance
with law, whereas the onus was upon the respondent to establish that
petitioner was duly served in the suit (Annexure P-1). However, the
respondent failed to examine the Process Server to prove the summons report
that petitioner was served through his wife, who allegedly refused to accept
summons on the behalf of petitioner. The Postal Peon was also not examined
to verify that a registered letter was sent on the petitioner's postal address. In
support of his arguments, learned counsel for the petitioner referred to the
judicial pronouncements namely G.P. Srivastava vs. R.K. Raizada and
Ors, 2000(2) RCR (Civil) 161; Pawan Kumar vs. Rajinder Kumar and
Another 2018(3) PLR 178; Prabhwati Devi and Another vs Gurdish
Singh, 2018(1) Law Herald 526; Surinderjit Singh vs. Pritpal Singh,
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2020(3) RCR (Civil) 738; Doodh Singh vs. Mangilal, 2013 (23) RCR
(Civil) 947 and Shambhu Prasad vs. M/s Satyam Rolar Flour Mills Pvt.
Ltd, 2003(1) B.L.Jud. 302. Concluding his submission, learned counsel
emphasizes on the settled legal principles of law that the Courts should adopt
liberal approach and permit the parties to contest their matters on merits, than
to dismiss their claims on technical grounds, particularly when the opposing
party can be compensated by costs. It is stated that, given the facts, the orders
are indefeasible in the eyes of law and should be set aside.
6. On other other hand, learned counsel for the respondents has
defended the order, asserting that same was validly passed, based on a sound
appreciation of evidence. It is stated that learned Courts below rightly relied
on the petitioner's unequivocal admission of being aware of the judgment
and decree on 15.09.2019. Further, the petitioner provided no explanation for
the delay in filing the application to set aside the judgment and decree. The
learned counsel submits that the petitioner is also ex-parte in execution
petition, this conduct of the petitioner goes a long way to demonstrate that he
is intentionally harassing the respondents, after having received `10,00,000/-
as earnest money from the respondents under the agreement to sell.
7. The learned counsel submits that petitioner was duly served
through registered letter sent at his last known correct address, which the
petitioner does not dispute. Additionally, he was even served through his
wife Vandana, who refused to accept the summons on his behalf. The
petitioner does not deny that his wife's name is Vandana, thereby
corroborating the summons report indicating that petitioner's wife refused to
accept summons on his behalf.
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8. The learned counsel argues that the learned Courts below, based
on the evidence presented, have correctly concluded that petitioner was duly
served in the suit and knowingly chose not to contest it. The petitioner was
aware of the ex-parte judgment and decree (Annexure P-2) passed against
him and failed to file an application within the prescribed period of
limitation. Furthermore, the petitioner failed to establish any sufficient cause
for his non appearance in the Court or for the delay in filing the application
to set aside the ex-parte judgment and decree. It is submitted by the learned
counsel that petitioner does not deserve any sympathy or leniency and a
prayer is made for the dismissal of the petition.
9. I have heard learned counsel for the parties and have gone
through the record with their valuable assistance.
10. It is a matter of record that respondent No.1 filed a suit for
specific performance against the petitioner, resulting in passing an ex-parte
judgment and decree dated 02.02.2019 (Annexure P-2) against the petitioner.
The petitioner subsequently, filed an application under Order 9 Rule 13 read
with Section 151 CPC (Annexure P-4) seeking to set aside the
aforementioned judgment and decree, pleading that he was never served by
any mode of service. The Process Server's reports and other related reports
were fraudulently obtained against him. He came to know of the judgment
and decree on 15.11.2019, when the Bailiff along with plaintiff came upon
his property and threatened to dispossess him from the suit property.
11. As explicit from the record, the learned Trial Court framed
issues, called the parties to present their evidence. Upon appraisal of the
evidence, particularly noting the petitioner's admission of gaining the
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knowledge of judgment and decree on 15.09.2019, the learned Courts below
determined that, plaintiff filed the application under Order 9 Rule 13 read
with Section 151 CPC (Annexure P-4) beyond the prescribed period of
limitation and no application for condonation of delay was submitted,
leading the learned Courts to dismiss the application of the petitioner
12. Insofar as the reliance on petitioner's admission of having gained
knowledge of passing of ex-parte judgment and decree 02.02.2019
(Annexure P-2) on 15.09.2019 by the learned Courts below is concerned, it is
my considered opinion that this is valid. The Courts below examined his
entire testimonial account and concluded that his awareness of passing of
the judgment and decree on 15.11.2019 was incorrect. Indeed, he became
aware of the judgment and decree on 15.09.2019. A review of his complete
statement reveals that the petitioner (PW-1) repeatedly referenced the
incident of 15.09.2019, when the respondent and his companions came onto
his property and allegedly attempted to dispossess him; he then came to
know of the judgment and decree on 15.09.2019 passed against him. The
learned Courts below relied on this unequivocal admission of the petitioner.
It is well established principle in law that clear and unwithdrawn admissions
can be relied upon. There is no evidence on record indicating that the
petitioner moved an application before learned trial Court to explain the
admission.
13. The settled position of law cannot be denied that the burden of
proving the due service of opposite party, whether through ordinary
summons or other permissible modes of service as envisaged under Order V
CPC, rests upon the other party seeking the service. For that he must provide
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positive and definite evidence to substantiate that the service was properly
made upon the opposite party. In the present case, the respondent/plaintiff
was required to prove due service of the petitioner/defendant in civil suit
(Annexure P-1). The argument presented by learned counsel for the
respondent/plaintiff that non-examination of petitioner's wife Vandana, is
fatal to disprove the report of refusal by his wife, is untenable. The reason
being, the petitioner is not required to lead evidence in negative.
14. Admittedly, the respondents did not examine the Process Server to
prove the report of refusal made by the wife of the petitioner. However, this
non-examination of Process Server is not fatal to the respondents, because
the petitioner was not proceeded ex-parte on this report. The zimni order
dated 09.03.2018 ( Annexure P-3 Colly.) shows that petitioner was ordered to
be summoned through RC&AD. Zimni order dated 16.03.2018, indicates that
case was adjourned pending a report of registered cover service. The counsel
placed postal receipts on 14.03.2018. The petitioner was again ordered to be
summoned through ordinary as well as registered cover vide order dated
21.05.2018. On 10.07.2018, counsel placed postal receipt dated 31.05.2018
indicating that the petitioner was served through postal letter. When the
registered cover (RC) was not returned within a 30-day period, the learned
Trial Court drew a presumption of due and valid service upon the petitioner.
15. The petitioner has not disputed the addresses mentioned in the
plaint or on the postal receipt, nor has claimed it as incorrect. Instead, he
admitted in his deposition that the address is correct. Consequently, the
learned trial Court appropriately inferred due service upon the petitioner,
taking into account non-return of the registered cover (RC) at the address
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provided. Section 27 of the General Clauses Act 1897 gives rise to a
presumption that service of notice has been effected when it is sent to the
correct address by register cover. The section provides that service by post
shall be deemed to be effected by properly addressing, pre-paying and
posting by registered cover, a letter containing a document, and, unless the
contrary is proved, to have been effected at the time at which the letter would
be delivered in the ordinary course of post. Section 114 of the Evidence Act
1872 provides that the Court may presume existence of certain facts, which it
thinks likely to have happened regard being had to the common course of
natural events, human conduct, and public and private business, in their
relations to the facts of the particular case. The illustration given at serial No.
(f) provides that Court may presume that the common course of business has
been followed in particular case. Therefore, service through registered post is
concerned, there is presumption that once a letter is dispatched at the correct
address, it must have reached its destination. But this presumption is
rebuttable. Here, the petitioner presented no evidence to counter the
presumption, other than a mere denial of service through registered cover.
Such a denial is insufficient, particularly, given the petitioner's admission of
his postal address on the postal receipt as correct. The evidence, thus
supports the conclusion drawn by the learned trial Court that the petitioner
was duly served through recognized and permissible modes of service.
Further, findings of the learned Appellate Court regarding unsatisfactory
explanation for placing on record the certified copy of the judgment and
decree (Annexure P-2) issued in favor of the respondent/plaintiff on
04.02.2019, appears justified, considering the petitioner's admission of
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having gained the knowledge of the decree and judgment (Annexure P-2) on
15.09.2019. The learned Courts below have appropriately and accurately
assessed the evidence and have not erred in proceeding against the petitioner
ex-parte. Therefore, there is nothing on record, indicating that the
conclusions and inferences drawn by learned Courts below, are contrary to
the evidence or result from a misreading or misapplication of the evidence.
16. Now, arises the question, in these circumstances, where the
petitioner has been found to be negligent and failed to provide a sufficient
explanation for his non-appearance in the case and also could not explain the
delay in filing the application within the statutory period of limitation, should
he (owner of the suit property) be condemned unheard particularly when
other party can be compensated with costs? Generally, the law favours
adjudication of the matters on merits, by giving the litigating parties
opportunity to present evidence and have their matters decided on their
substantive merits. In G.P.Srivastava vs. R.K. Raizada & Ors. 2000(2)
RCR (Civil) 161 Hon'ble the Supreme Court held that 'even if the appellant
was found to be negligent, the other side could have been compensated by
costs and the ex-parte decree set aside on such other terms and conditions as
were deemed proper by the Trial Court. On account of the unrealistic and
technical approach adopted by the Courts, the litigation between the parties
has unnecessarily been prolonged for about 17 years. The ends of justice
can be met only if the appellant-defendant. is allowed opportunity to prove
his case within a reasonable time'.
17. Keeping in mind the observations made in G.P.Srivastava
(supra) and settled exposition of law filtered through judicial precedents that
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rival claims of the parties be settled on merits, this Court finds that to provide
complete justice to the parties, the petitioner be given an opportunity to
contest the matter on merits. Further to balance the equities between the
parties, the petitioner should be burdened with costs. Accordingly, the
petition is allowed and impugned orders dated 19.12.2023 (Annexure P-8),
order dated 16.05.2024 (Annexure P-11) and order dated 02.02.2019
(Annexure P-2) are set aside, subject to payment of costs of `50,000/- to be
paid by the petitioner, Parveen Kumar to the respondent No.1-Harinder
Singh. On payment of costs, suit shall be restored at its original number and
the parties shall appear before the learned trial Court within 15 days from
obtaining the certified copy this order. The learned Court shall proceed with
the case, as per law.
18. This Court is conscious of the fact that matter is of year 2018,
the learned trial Court is directed to conclude the trial within one year by
providing three effective opportunities to each party. Needless to mention,
the concerned parties shall cooperate with the learned Court in deciding the
matter expeditiously, without seeking any undue adjournment(s).
19. Since the main case has been decided, pending miscellaneous
application(s), if any, are also disposed of accordingly.
( RITU TAGORE)
02.08.2024 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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