Punjab-Haryana High Court
Hardeep Singh vs Tejinder Singh Kainth And Others on 13 May, 2024
Author: Alka Sarin
Bench: Alka Sarin
126
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-2785-2024 (O&M)
Reserved on : 08.05.2024
Date of Decision :13.05.2024
Hardeep Singh ........Petitioner(s)
Versus
Tejinder Singh Kainth and Others ........Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Navinder Jit Singh, Advocate for the petitioner.
ALKA SARIN, J.
1. The present revision petition has been filed challenging the
order dated 09.02.2024 (Annexure P-5) whereby the application under
Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure,
1908 for setting aside the ex parte judgment and decree dated 14.09.2015
has been allowed.
2. Brief facts relevant to the present case are that the plaintiff-
petitioner herein filed a suit for a decree of declaration to the effect that
he is the owner in possession of House No.37 Street No.3, Ferozepur
Cantt. as well as other properties on the basis of a Will dated 15.03.2008
executed by Jeet Kaur widow of Kartar Singh. The defendant-
respondents in the suit were proceeded against ex parte and an ex parte
judgment and decree was passed on 14.09.2015. Subsequently, an
application was preferred by the contesting defendant-respondent No.1
for setting aside the said judgment and decree on the ground that he was
integrity of this order/judgment.
never served in the case. The said application was contested by the
plaintiff-petitioner. On the basis of the pleadings and the evidence led by
the parties, the said application was allowed vide the impugned order
dated 09.02.2024. Aggrieved by the same, the present revision petition
has been preferred by the plaintiff-petitioner.
3. Learned counsel for the plaintiff-petitioner would contend
that the defendant-respondent No.1 stood duly served and that
publication was also done in the Tribune having circulation in Bathinda
and therefore the defendant-respondent No.1 could not say that he was
not served.
4. I have heard the learned counsel for the plaintiff-petitioner.
5. In the present case the address of the defendant-respondent
No.1 as given in the plaint itself is of Québec Canada. Infact, the
contesting defendant-respondent No.1, on whose behalf the application
has been filed, lives in Québec Canada. The application was filed on the
ground that the judgment and decree was passed without effecting proper
service on the contesting defendant-respondent No.1 who is a NRI and
had not come to India for the last more than 20 years. It was pleaded
before the Court that the address as given in the plaint itself was wrong
and that the plaintiff-petitioner herein was aware of the correct address as
an appeal had been preferred by the defendant-respondent against the
order passed by the SDM (W) Ludhiana on 31.01.2024 regarding the
mutation No.32157 of Village Sunet, District Ludhiana before the Court
of ADC Ludhiana. Despite the plaintiff-petitioner herein being aware of
the correct address, he gave a wrong address in the plaint. The argument
integrity of this order/judgment.
of the learned counsel for the plaintiff-petitioner that the defendant-
respondent No.1 stood duly served, hence, cannot be accepted. The
second argument of the learned counsel that the defendant-respondent
No.1 stood served by way of a publication also deserves to rejected.
Admittedly, the defendant-respondent No.1 is a Canadian resident. The
address of the defendant-respondent No.1 given in the plaint is of Québec
in Canada whereas the publication was done in the Bathinda Edition of
the Tribune. It is not a case of the plaintiff-petitioner that the defendant-
respondent No.1 was a resident of Bathinda. Order 5 Rule 20 CPC reads
as under :
"20. Substituted service - (1) Where the Court is
satisfied that there is reason to believe that the
defendant is keeping out of the way for the purpose
of avoiding service, or that for any other reason the
summons cannot be served in the ordinary way, the
Court shall order the summons to be served by
affixing a copy thereof in some conspicuous place in
the Court-house, and also upon some conspicuous
part of the house (if any) in which the defendant is
known to have last resided or carried on business or
personally worked for gain, or in such other manner
as the Court thinks fit.
(1A) Where the Court acting under sub-rule (1)
orders service by an advertisement in a newspaper,
the newspaper shall be a daily newspaper circulating
integrity of this order/judgment.
in the locality in which the defendant is last known to
have actually and voluntarily resided, carried on
business or personally worked for gain.
(2) Effect of substituted service - Service substituted
by order of the Court shall be as effectual as if it had
been made on the defendant personally.
(3) Where service substituted, time for appearance to
be fixed - Where service is substituted by order of the
Court, the Court shall fix such time for the
appearance of the defendant as the case may
require."
6. The publication has to be in a daily newspaper circulating in
the locality in which the defendant is last known to have actually and
voluntarily resided or carried on business or personally worked for gain.
In the present case even in the plaint the address given of the defendant-
respondent No.1 is that of Québec in Canada. That being so, service by
way of publication in the Bathinda Edition of the Tribune cannot in any
manner be held to be valid service.
7. In view of the above, no fault can be found with the
impugned order passed by the Trial Court. The present revision petition
being devoid of any merit is accordingly dismissed. Pending applications,
if any, also stand disposed off.
13.05.2024 (ALKA SARIN)
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment.
