Hartek Singh And Another vs Jai Singh And Others
2024 Latest Caselaw 17864 P&H

Punjab-Haryana High Court

Hartek Singh And Another vs Jai Singh And Others on 25 September, 2024

                                   Neutral Citation No:=2024:PHHC:126222




      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

                                            Civil Revision No.1172 of 2023
                                            Pronounced on
                                                        on: 25.09.2024
                                                            25

Hartek Singh and Surlekh Singh through their GPA Dharminder Singh
                                                  .... Petitioners

                                  Versus


Jai Singh and others                                          .... Respondents

CORAM: HON'BLE MR. JUSTICE GURBIR SINGH

Present:     Mr. Sangram Singh Saron, Advocate and
             Mr. Madhavrao B. Rajwade, Advocate, for the petitioners.

             Mr. G.C. Shahpuri, Advocate, for respondent No.1.
                               ----

GURBIR SINGH, SINGH J.

1. Present revision petition has been filed under Article 227 of the

Constitution of India for quashing the order dated 24.01.2023 (Annexure

P-23)

23) passed by learned Additional District Judge, Yamuna Nagar at

Jagadhri, dismissing the appeal filed by y the petitioners against the order

dated 08.09.2016 passed by learned Civil Judge (Senior Division) Yamuna

Nagar at Jagadhri dismissing the application filed under Order 9 Rule 13 of

CPC for setting aside ex-parte ex parte judgment and decree dated 03.03.2011 and

order dated 18.08.2006 whereby petitioners were proceeded against ex ex-parte, parte,

in a suit filed for possession by way of pre-emption emption.

2. For the sake of convenience, the parties herein are being

addressed as per their status before the trial Court. The petiti petitioners herein are

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defendants No.1 and 2 and respondent No.1 is the plaintiff whereas

respondents No.2 and 3 are defendants No.3 and 4.

3. In brief, defendants No.1 and 2 have challenged the ex-parte

judgment and decree on the ground that they were never served in the suit.

They were not aware about the pendency of the suit. The plaintiff filed

execution on the basis of ex-parte judgment and decree dated 03.03.2011 and

got the order for execution of the sale deed. When the plaintiff approached

the office of Sub-Registrar, Mustafabad for execution of the sale deed in

their favour only, then Harbhajan Singh and Surender Singh told the

defendants No.1 and 2 that Jai Singh, plaintiff, had got some ex-parte decree

against them. The defendants are residents of Mani Majra, U.T., Chandigarh

whereas munadi was got effected at some other place. Well established

procedure for service on the defendants was not followed. Defendants No.1

and 2 had no knowledge about the filing of the suit and passing of the ex-

parte judgment and decree against them and they came to know only on

24.11.2013. The application was filed without any delay on having

knowledge of passing ex-parte judgment and decree.

3.1 The respondent-plaintiff contested the application by raising

preliminary objection that the application is time barred and no application

for condonation of delay has been separately filed. The notice was sent to

defendants No.1 and 2 through registered post. Same was received with the

report of refusal and the court passed the order to effect service in the said

village where suit property was situated and the defendants No.1 and 2 were

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proceeded ex-parte in accordance with law. Notice in the execution was also

sent to the defendants but they did not appear and the application was moved

at the final stage of the execution.

3.2 Vide order dated 08.09.2016, the application filed by

defendants No.1 and 2 for setting aside judgment and decree, was dismissed

and said order was upheld by the learned Appellate Court vide order dated

24.01.2023.

3.3. Aggrieved against the said orders, present revision petition has

been filed.

4. Learned counsel for the petitioners-defendants No.1 & 2 has

argued that the address given in the suit is the permanent address of the

petitioners. They never received any notice/summon at their residential

address regarding suit. The petitioners purchased the land in village Khanpur

and are not resident of said village. They are residing permanently at Mani

Majra, Chandigarh (UT). The munadi was conducted at Village Khanpur.

The petitioners could not know about the pendency of the suit. The entire

proceedings are non-est and had been conducted behind the back of the

petitioners. The plaintiff never gave the true and current address of the

petitioners in order to prevent them in appearing, presenting their defence

and objections in the proceedings.

5. Learned counsel appearing on behalf of respondent No.1-

plaintiff has argued that the application filed under Order 9 Rule 13 CPC is

itself time barred as the proceedings in the civil suit for pre-emption were

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well in the knowledge of the petitioners-defendants No.1 and 2, but they

intentionally did not appear. Earlier registered AD notice issued to the

petitioners received back with the report of 'refusal' and subsequently,

substituted service by way of munadi was effected in the village where land

was situated. Thus, it cannot be said that the petitioners were not having the

knowledge of proceedings and therefore, the cause pleaded for being

ex-parte has remained totally unproved.

6. I have heard the submissions of learned counsel for the parties

and have gone through the file.

7. Brief history qua suit property is that plaintiff-Jai Singh (for

himself and as General Attorney of other LRs of Shankar purported gair

marusi tenant of the suit land) filed a suit, in the year 2006, for possession by

way of pre-emption of suit land as fully described in the plaint. In fact,

Mangal Singh was the original owner of the suit land which was under the

cultivating possession of the father of plaintiff, namely, Shankar. After the

death of Mangal Singh, the property was inherited by his wife Rameshwari

Devi, who sold the suit land to Amar Nath, who in turn, sold the same to

Gian Singh. Initially, Shankar, the tenant, filed a suit for permanent

injunction for restraining Gian Singh from taking forcible possession but

during pendency of that suit, Gian Singh succeeded in taking possession,

which led Shankar to file a suit for possession in 1979. Though the suit was

dismissed by the trial Court, but the learned Appellate Court set aside the

judgment of trial Court and decreed the suit for possession vide judgment

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dated 23.01.1985. Said decision was upheld by this Court as well as Hon'ble

Supreme Court. In execution of that decree, objections filed by Gian Singh

and others were dismissed. Later, a statement was made that the possession

of the land would be given by 30.11.1987. But when the possession was not

given, it was sought with the assistance of police and executive authorities

and as a result thereof, Shankar was finally put in possession of the suit land

on 15.04.1988. Meanwhile, Gian Singh initiated proceedings against Shankar

seeking possession before the revenue authority, which were dismissed vide

order dated 07.10.1988. On 15.04.1988 itself, a civil suit was filed by Gian

Singh against Shankar for injunction against forcible interference in

possession and a similar suit was also filed by Shankar against Gian Singh.

Both the suits were tried together. The trial Court vide judgment and decree

dated 01.12.1997 decreed the suit of Shankar and dismissed that of Gian

Singh. Said decision of the trial Court was also upheld by the learned

Appellate Court vide judgment dated 14.09.2000. Parties approached this

Court by way of RSA No.3906 of 2000 and in the meanwhile, Gian Singh

and his wife Surjit Kaur sold the suit land measuring 39 bighas 10 biswas to

Hartek Singh and Surlekh Singh (present petitioners) vide sale deed No.596,

dated 30.06.2005. Shankar died on 12.03.2005 and his son Jai Singh for

himself and also attorney of other legal heirs of deceased, filed a suit seeking

to pre-empt the sale deed dated 30.06.2005 on the ground that they were the

tenants in cultivating possession over the suit land. Said suit was decreed ex-

parte vide judgment and decree dated 03.03.2011 vide which the plaintiffs

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were held owners of the suit land and were directed to deposit the balance

sale consideration/pre-emption money. The application was moved to set

aside this ex-parte judgment and decree.

7.1 Respondent No.1-plaintiff self and also attorney of other legal

heirs of Shankar filed the suit for possession by way of pre-emption. The

petitioners, who were defendants No.1 and 2 in the suit, are shown as

residents of House No.1518, NAC Road, Mani Majra, Chandigarh (UT) and

defendants No.3 and 4 in the suit were residents of Village Khanpur, Tehsil

Jagadhri, District Yamuna Nagar.

7.2 Vide order dated 25.04.2006, registered cover (RC) issued for

summoning defendants No.1 and 2 at Chandigarh address was received back

with the report of refusal and therefore, they were ordered to be served

through munadi for 07.06.2006. Fresh notice was issued to defendants No.3

and 4. On the adjourned date, since notice issued to defendants No.3 and 4

received back with the report of refusal and munadi issued against

defendants No.1 and 2 was not received back, therefore, all the defendants

were ordered to be summoned through munadi and by way of beat of drum

and affixation for 18.08.2006. On said date, munadi was received back duly

effected, but none appeared on behalf of the defendants and they were

proceeded ex-parte. Said orders read as under:-

"Present: Sh. S.K. Gupta, Counsel for Plaintiff

received back with the report of refusal.

Therefore, now defendant No.1 & 2 be now summoned through munadi for 7.6.06 on MF, PF.

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Defendant 3, 4 not served. Be summoned for the date fixed.

Sd/-

CJSD/25.04.06"

Present: Sh. S.K. Gupta, Counsel for Plaintiff None for the defendants.

Notice issued to the defendant No.3 & 4 received back unserved with (illegible) of refusal. Munadi issued against the defendant No.1 & 2 not received back. Request for (illegible). Heard. Now all the defendants be summoned through Munadi and way of beat of drum and affixation for 18/8/06 on duty of PF/MF.

Sd/-

Civil Judge (Sr. Division) 7/6/06"

Present: Sh. S.K. Gupta, Counsel for Plaintiff

Munadi issued against defendants received back duly effected but none appeared on behalf of defendants. Case has been called several times. Waited sufficiently. Hence, defendants are proceeded ex parte.

To come upon 25.11.06 for ex-parte evidence.

Sd/-

ACJM/18.08.06"

The totality of the facts shows that the petitioners are residents of Mani

Majra, Chandigarh (UT), but munadi was effected at Village Khanpur,

Tehsil Jagadhri, on the basis of which, petitioners were proceeded against ex-

parte. It is not the case of the respondent/plaintiff that petitioners were

resident of Village Khanpur. From evidence, it can be safely concluded that

there was no service effected upon the petitioners-defendants in the suit. The

extract of order passed by trial Court is as under:-

"11. After considering the rival submissions, this court finds essence in the submissions made by the learned counsel for the

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respondent. It is noticeable that there is a long history of litigation between the parties pertaining to suit property. It is also important to note that order for issuance of munadi against the applicants was made subsequent to receipt of registered notice with the report of refusal. Even if it is presumed that subsequent vendees Harbhajan Singh and Surender Singh were in possession of the suit property at the time when munadi was effected, the applicants were still required to show that they were not aware of the litigation. In this regard two facts assume significance. First that Harbhajan Singh and Surender Singh have also filed the objections along with the applicants in the execution petition which would show that all of them were in touch and were keeping a secret watch over the proceedings. Second that the applicants have filed the present application at the fag end of the execution when the court had already appointed a local commissioner and had directed him to execute the sale deed. It is noticeable that applicants did not appear initially in the execution also upon service and had moved the objections at the fag end of the execution. Importantly, there is no explanation as to how the applicants came to know of the execution proceedings. This would show that applicants were very well aware of the proceedings and were keeping an eye on the proceedings secretly. Moreover, the applicants have chosen not to appear in the witness box in support of the averments contained in the application, but have examined their power of attorney holder. Certainly, power of attorney holder cannot be aware of the entire facts from his personal knowledge and the right of respondent to cross examine the applicants on material aspects has been constrained by this fact. The burden to show that report of post office regarding

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refusal of registered notice was false and that munadi proceedings were ineffective was upon the applicants which they have failed to discharge. It would be apt to observe that official proceedings of postal department and proceedings of the court cannot be lightly set aside and doubted. Noticeably the suit was instituted in the year 2006 and ex parte judgment and decree was passed in the year 2011. It is not such a case where the plaintiff hurriedly obtained ex parte judgement and decree in his favour. The fact that there was no occasion for the applicants to receive notice of the execution proceedings at the stage when they filed objections is also very significant in order show that the applicants in fact were keeping secret eye on the proceedings and delayed appearance till the very end. Therefore, this court is of the view that applicants deliberately did not appear before the court in the main suit and kept on watching entire proceedings till very end and filed the present application merely to procrastinate the trial."

The learned court of Civil Judge presumed that the subsequent vendees were

in possession of the suit property at the time when munadi was effected. The

petitioners were still required to show that they were not aware of the

litigation. Surender Singh filed objections along with the petitioners in the

execution petition. All of them were in touch and were keeping a secret

watch over the proceedings and the application under Order 9 Rule 13 CPC

was filed at the fag end of the execution when the court had already

appointed a Local Commissioner and directed him to execute the sale deed.

There is no explanation as to how the petitioners came to know of the

execution proceedings. The petitioners did not opt to appear in the court but

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examined their power of attorney holder, who cannot be aware of the entire

facts from his personal knowledge. It is not the case where the plaintiff

hurriedly obtained ex-parte judgment in his favour. Suit was instituted in

2006 and ex-parte judgment was passed in 2011. The petitioners were

keeping a secret eye on the proceedings and delayed appearance till the very

end.

7.3 The learned Appellate Court dismissed the appeal and came to

the conclusion that notice was sent to defendants No.1 and 2 on their correct

address. A registered notice sent through registered post and munadi effected

by officials of the court are liable to be presumed to have been effected in the

ordinary course of official duties unless it is not shown that there was any

collusion of the concerned official with the respondent. Registered notices

were sent at the correct address and when the same were received back with

the report of refusal, for abundant caution, the learned appellate Court again

issued process for service by way of munadi. Munadi was effected at the

village where the land is situated and it does not make any difference as

defendants No.1 and 2 had already got knowledge of the pendency of suit.

The extract of order passed by appellate Court is as under:-

"18. A perusal of the case file would reveal that registered covers were sent to defendants No.1 and 2 on their correct address. There is presumption that addressee had received the letter sent by registered post, however, the presumption is rebuttable, but the same is not rebutted by the appellants/ defendants No.1 and 2 while appearing in the witness box. None of the defendants appeared in the witness box to depose

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that either registered notices were not sent to their correct address or they had not refused to accept the same. In place of defendants No.1 and 2, their power of attorney Dharmender Singh examined himself as AW1, who is a resident of Jagadhri. The service of registered AD notices was admittedly got effected at the address of defendants No.1 and 2 at Manimajra, Chandigarh (UP) (sic.) UT and, therefore, said Dharmender Singh being a power of attorney holder cannot be presumed to have knowledge about the fact that whether service of registered AD notice was effected upon defendants No.1 and 2 at Manimajra, Chandigarh (UT) or not. A power of attorney holder cannot be assumed the facts from his personal knowledge and he/she cannot depose for the principal in respect of the matters for which only the principal is entitled to be cross examined. For this view reliance can be placed upon the Judgment in Jasbir Singh's case (supra). It is to be mentioned further that a registered notice sent through registered post and munadi effected by officials of Court are liable to be presumed to have been effected in the ordinary course of official duties unless it is shown that there was any collusion of the concerned official with the respondent. It is not the case of appellants/defendants No.1 and 2 that there was collusion of concerned official, who effected the munadi with the plaintiff/respondent, rather case of appellants- defendants No.1 and 2 is that they were not owners of the property at the time of substituted service through munadi. However, there is no denial of the fact that registered covers were sent to their correct address, but the same were received in the Court with the report of refusal and the same was effective/proper service under Order 5 Rule 9(5) CPC. Though after receiving the registered notices issued to defendants No.1

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and 2 with the report of refusal, for abundant caution, the learned Lower Court again issued process for serving upon them through substituted service i.e. by way of effecting munadi and merely the munadi was effected at Village, where the land is situated, does not make any difference as defendants No.1 and 2 had already got knowledge of the pendency of suit against them by way of registered-post.

19. It may be mentioned further that as per appellants/ defendants No.1 and 2, they came to know about the exparte decree from Harbhajan Singh and Surender Singh. However, to prove this fact, defendants No.1 and 2 have not stepped into witness box and they examined said Surender Singh as AW2, but in his affidavit Ex.AW2/A, he nowhere stated that he had informed about the exparte decree to defendants No.1 and 2. He has vaguely stated in para No.10 of his affidavit that some time ago, Jai Singh came at the spot and threatened to take possession forcibly being owner of the land and thereafter, he enquired from the Court and came to know about the exparte decree. It is pertinent to mention here that in the execution petition filed by respondent/plaintiff, said Surender Singh had filed objections and also appeared as OW6, whereby he stated that decree holder/plaintiff was about to get executed and registered sale deed in his favour and thereafter, they enquired the matter and came to know about the exparte decree. Neither in his objections nor while appearing as OW6, Surender Singh nowhere stated that Jai Singh had come at the spot and threatened to take possession of the land forcibly as has been deposed by him in this application while appearing as AW2.

20. As far as the period of limitation for filing of an application under Order 9 Rule 13 CPC is concerned, Article 123 of the Limitation Act clearly prescribes that period of

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limitation is 30 days for filing of application under Order 9 Rule 13 CPC from the date of decree where the defendant has caused appearance and in other cases from the date of knowledge.

21. However, in the present case, this Court is of the considered view that the defendants No.1 and 2 were having knowledge about the pendency of the suit since the very beginning when they refused to accept the service of summons by way of registered post. Thus, in the present case, the period of limitation commences from the date of decree whereas the present application has been filed on 06.12.2013. Thus, the application filed by defendants No.1 and 2 is clearly time barred."

7.4 The orders passed by both the courts are on the basis of

assumptions and presumptions. Once registered notice is received with the

report of refusal, the court should either proceed on the basis of report on the

registered notice or adopt other way for service upon the party. After receipt

of said report of refusal, the court opted to serve the petitioners-defendants

by way of affixation and munadi, which means that the court itself was not

sure whether the petitioners were served or actually refused the registered

envelope containing notice. The court ordered to serve the petitioners by way

of affixation and munadi. Munadi was not effected at the residential address

of the petitioners as the petitioners were not the residents of Village Khanpur

where the property is situated. There was no specific order to effect munadi

at Village Khanpur, District Yamuna Nagar. In the earlier order also order

was passed to serve the petitioners through munadi which means at their

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residential address. So, in these circumstances, it can be safely concluded

that munadi was not actually effected as per orders of the Court. Thus, it

can be safely concluded that notice was never served upon the petitioners.

7.5 In case Karnail Singh Versus Dina Nath and others, 1985(2)

PLR 477, this Court held that in case the defendants against whom ex-parte

decree is passed comes to the court praying for setting aside of ex-parte

decree on the ground that he was not served, then onus would be in the

negative form on him and his statement on oath denying service would shift

onus on the plaintiff to disprove his statement. In the case in hand, it is

proved that the petitioners were not served and there is statement of

attorney of petitioners denying service of notice upon petitioners, so the

onus was on the respondent No.1-plaintiff to rebut the same, but in this

case, there is no such evidence that munadi was actually effected as per the

orders of the court at the residential address of the petitioners. It is settled

law that once due service is not established, the limitation of setting aside

ex-parte judgment would count from the date of knowledge. I draw support

from case Prabhwati Devi and another Versus Gurdish Singh, 2018(1)

Law Herald 526, an authority of this Court. Since no service was effected,

so the application moved under Order 9 Rule 13 CPC is within the

limitation

7.6 The relief of setting aside ex-parte decree and condonation of

delay is one and same. These are not distinct reliefs. Unless the question of

condonation of delay is considered, the application under Order 9 Rule 13

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CPC cannot be taken up at all. So the filing of application praying for the

relief of setting aside the ex-parte judgment and decree is not any illegality.

Separate applications are required only in respect of each distinct relief

prayed for. It is specific case of the petitioners that they came to know

about the passing of ex-parte decree only on 24.11.2013. In the case in

hand, the application for setting aside ex-parte judgment is filed within 30

days of coming to know about passing of the same, so no separate

application for condonation of delay in filing the application for setting

aside, was required.

7.7 It is well settled that the parties should be permitted or made to

litigate the matter on merits unless they are shown to have remained

indifferent or negligent.

8. In the light of above discussion, the present petition is allowed

and the orders passed by the courts below are hereby set aside, however,

subject to costs of Rs.20,000/- to be paid to respondent No.1-plaintiff, in

the trial Court.

9. Keeping in view the fact that the case is very old, so the trial

Court is directed to dispose of the case expeditiously. Petitioners/

defendants No.1 and 2 shall be liable to file written statement positively on

the date to be fixed by the trial Court. After framing of issues, the plaintiff

as well as petitioners-defendants No.1 and 2 would be given only three

effective opportunities each for leading evidence.

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10. Parties are directed to appear before the trial Court on

15.10.2024.

(GURBIR SINGH) JUDGE September 25, 25 2024 sanjeev Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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