Punjab-Haryana High Court
Samarjeet Singh vs Samay Singh on 19 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:039778
CR-1759-2024 (O&M) 1 2024:PHHC:039778
136 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-1759-2024 (O&M)
Date of decision: 19.03.2024
Samarjeet Singh
....Petitioner
Versus
Samay Singh
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Sandeep Vermani, Advocate for the petitioner
ANIL KSHETARPAL, J (Oral)
1. In this revision petition, the plaintiff assails the correctness
of the order setting aside the ex-parte judgment and decree while
allowing the application under Order IX Rule 13 of the Code of Civil
Procedure, 1908 (hereinafter referred to as 'CPC'). In substance, the
court has permitted the defendant (respondent herein) to contest the suit
on merits.
2. The trial court, upon examination of the material, which is
available on the file, has recorded the following findings:-
"10. Onus to prove this issue was upon
the applicant. It is the case of the applicant that in
the case titled as "Samarjeet Singh vs. Samay Singh"
the applicant did not receive any summons and an
exparte judgment and decree has been passed against
him which is liable to the set-aside and the applicant
should be given an opportunity to contest the said
case. A bare persual of the main case file shows that
the main case was fixed for evidence of plaintiff on
18.12.2013. On that day neither the plaintiff or the
defendant appeared before the court and the case was
held to be dismissed in default and file was consigned
to record room after due compliance. On the same
day, case file was again put up as the plaintiff
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appeared before the court. The court held that the
case was dismissed in default under a mistaken belief
and the same was restored to its original number.
The counsel for the plaintiff stated that the matter
involved in the case was pertaining to Pataudi Court
and the case may be transfer to Pataudi Court. On
the same day, the case was referred to Ld. District
and Sessions Judge for passing further order. On
12.02.2014, Ld. District and Sessions Judge declined
the reference by holding that when Ld. Trial judge
passed order on 18.12.2013, none was present for the
defendant and reference has been made in the
absence of defendant or his counsel. Thereafter, the
case was adjourned for 25.02.2024 and notice to
defendant was issued. Thereafter, on 30.05.2014,
notice issued to defendant through counsel was
received back served and the defendant was
proceeded against ex-parte. It is worthwhile to be
mentioned here that the defendant in that case was
never served with notice. Although the notice issued
against the defendant was stated to be served to his
counsel Sh. Shyambir advocate. In this regard, who
deposed in his examination-in-chief that he worked
with Advocate Sh.Shamveer Singh for the last 19
years and he identified the signatures of Advocate
Sh.Shamveer Singh very well. He further deposed
that the signature over the backside of summons
issued against applicant which is Ex.A12 on file is
not of Sh.Shamveer, Advocate. Once the signature of
Sh.Shamveer, Advocate was denied to be there on the
backside of summons by his clerk, it was duty of the
respondents to prove that the signature on the
backside of summons was of Sh.Shanveer, Advocate.
Moreover, the service upon Advocate is a substitute
service and cannot be held to be direct service upon a
party. Moreover, it can also not be held that at the
time of receiving the notice, Sh.Shyambir, advocate
was still the counsel for the defendant. The case was
held to be dismissed in default and was consigned to
records. Meaning thereby the fate of the case was
decided by the court. In that eventuality, it was
mandatory to serve with a notice to the defendant in
person. Keeping in view of all facts and
circumstances and discussion, this issue is decided in
favour of the applicant and against the respondent."
3. Learned counsel representing the petitioner, while referring
to report on the summons sent for service of the notice, submits that the
application for setting aside the decree was liable to be dismissed as the
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respondent has knowledge of the pending litigation. He submits that on
14.04.2017 a report was submitted by the Station House Officer to the
effect that the dispute between the parties is of civil nature and hence,
they were instructed to pursue their respective civil suit in the civil court.
He, hence, submits that the defendant's application, which was filed on
06.12.2017, was beyond the prescribed period of limitation. He further
submits that there was no application for the condonation of delay.
4. This Court has considered the submissions made by the
learned counsel representing the petitioner.
5. The plaintiff filed a suit for declaration to the effect that the
sale deed executed by him on 28.11.2003, in favour of defendant, is null
and void. The defendant appeared and filed his written statement on
04.12.2010. Thereafter, the suit was dismissed in default on 18.12.2013.
However, it was restored on the same day. Subsequently, it was
transferred from the courts at Gurugram to the courts at Pataudi. It has
come on record that for one date, two summons were issued to the
counsel Sh.Shamveer Singh. The report on both the summons was
different. Furthermore, it is evident from perusal of the summons sent
for service on the respondent that the respondent is serving in Delhi
Police whereas, whenever the Process Server visited his house it was
disclosed by the respondent's wife that her husband is serving in Delhi
Police, however, no attempt was made by the plaintiff to serve the
respondent at his office address.
6. In any case, the court has only granted an opportunity to
respondent to contest the case.
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7. In these circumstances, this Court does not find it
appropriate to interfere.
8. Hence, dismissed.
9. All the pending miscellaneous applications, if any, are also
disposed of.
19.03.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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