The High Court dismissed the revision petition challenging the District Judge's order setting aside the Civil Judge's dismissal of an application to set aside an ex-parte decree. The Court held that it was not proved that the respondents were actually served in the suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
C.R. No. 134 of 2012 Reserved on: 3.5.2013. Date of decision: 31.5.2013
Mastu Ram and another …Petitioners Versus Sobha Ram and others ..Respondents
Coram
The Hon’ble Mr. Justice Kuldip Singh, Judge.
Whether approved for reporting ?1 No
For the Petitioners : Mr. Lovneesh Kanwar, Advocate. For the Respondents : Mr. M.S.Guleria, Advocate.
Kuldip Singh , Judge
The order dated 24.8.2012 passed by learned District Judge, Mandi in Civil Misc. Appeal No. 3/2012 reversing order dated 13.3.2012 passed by learned Civil Judge (Senior Division), Sarkaghat in CMA No. 121-VI/2003 declining to set-aside exparte decree dated 27.2.2003 under Order 9 Rule 13 read with Section 151 CPC has been assailed in the revision.
2. The facts in brief are that the petitioners had filed Civil Suit No. 68 of 1999 against the respondents which was decreed on 27.2.2003. The respondents No. 1 and 2 moved an application under Order 9 Rule 13 read with Section 151 CPC for setting-aside exparte
1 Whether reporters of Local Papers may be allowed to see the Judgment ?
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decree dated 27.2.2003. In the application, they have alleged that on 15.5.2003 they came to know from Halqua Patwari that some decree has been passed against them. On 16.5.2003 they contacted an advocate at Mandi, who drafted an application for stay of mutation, but that application was not presented when they came to know that mutation had not been attested. The application was also not presented as respondents No. 1, 2 realised that no fruitful purpose would be served by moving such application.
3. It has also been stated in the application that respondents No. 1 and 2 were not served in the suit. The respondents No. 1 and 2 were condemned unheard. The respondents No. 1 and 2 applied and obtained the copy on 19.5.2003, prepared the application for setting aside exparte decree dated 27.2.2003. It was stated that the application is within limitation from the date of knowledge.
4. The application was contested by filing reply in which preliminary objections of maintainability, limitation and lack of sufficient cause have been taken. On merits, the stand of the respondents No. 1 and 2 was denied, it was stated that respondents No. 1 and 2 were having the knowledge of exparte decree, they were validly served in the suit through Smt. Kamla Devi, a family member of respondents No. 1 and 2. The respondents No. 1 and 2 despite service did not put appearance and, therefore, no fault can be found with the ex-parte decree. The exparte order has not been challenged.
5. The rejoinder was filed and stand taken by respondents No. 1 and 2 in the application for setting aside exparte decree was reiterated. On the pleadings of the parties, the following issues were framed:
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The issues No. 1, 2 and 4 were answered in negative, issues No. 3 and 5 in affirmative and application was dismissed on 13.3.2012. In appeal on 24.8.2012 the learned District Judge, Mandi set-aside the order dated 13.3.2012.
6. Heard. AW-1 D.C.Guleria, Advocate has stated that on 16.5.2003 Sobha Ram, Roshan Lal, Janku Ram contacted him and on their asking he had drafted application Ex.AW-1/A and handed over the application to them. In cross-examination, he has stated that they had no knowledge of the decision and Patwari told them about the decision. AW-2 Chet Ram son of Sobha Ram has stated that Janku, Roshan are the sons of his father’s brother, they are residing separately for the last 30/40 years. He and his father are living separately since 1996. The application Ex.AW-1/A was got prepared by them. On 19.5.2003 he obtained copy of decision. In cross-examination, he has stated that
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Kamla Devi is his wife. He denied that he was served through his wife. He denied that signatures of Kamla Devi are on summon Ex.R-1. He denied that his wife Kamla received summons of Roshan, Sobha Ram as well as his own. He denied that his wife disclosed him about summons. He denied that on Ex.R-1 to Ex.R-3 his wife has put her signatures. There is another Kamla in his village whose husband name is Lekh Raj.
7. AW-3 Kamla Devi wife of Chet Ram has stated that on 16.4.1999, she had received no court paper nor she put her signatures on some paper. She, her husband are living separately for the last 12 years from Sobha Ram. She denied her signatures on Ex.R-1, Ex.R-2 and Ex.R-3. AW-4 Dharam Singh, Patwari has stated that in the year 2003 he had orally informed Sobha etc. regarding mutation. AW-5 Sobha Ram has stated that he and his son, Chet Ram met an advocate and got prepared application Ex.AW-1/A. He nor his any other family member received summons from the Court. In cross-examination, he has stated that Kamla Devi is his daughter in law. She is sister in law of Roshan, who at the relevant time was minor. He denied that his daughter in law Kamla Devi had received summons. The joint family is living separately for the last 10-11 years.
8. RW-1 Mastu Ram has stated that Kamla is daughter in law of Sobha, copy of Parivar Register is Ex.RW-1/A. RW-2 Vinod Kumar, Process Server has stated that on 16.4.1999 he served Sobha Ram, through his daughter in law Kamla Devi, who put her signatures on Ex.R-1 and Ex.R-2. Kamla is wife of Chet Ram, who was served through his wife Kamla, who put her signatures on Ex.R-2. Ex.R-3 was also served through Kamla. In cross-examination, he has stated that he does
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not know Kamla is family member of Sobha. He does not know personally Kamla. No identification was got done. He did not ascertain that Janku, Sobha, Chet Ram, Roshan were living jointly. There are shops below the house of Sobha Ram.
9. Ex.RW-1/A is the copy of Parivar Register of Roshan Lal son of Sewak. Dolra wife of Roshan Lal has been shown in Ex.RW-1/A as family member of Roshan Lal. Ex.R-1, Ex.R-2 and Ex.-R-3 are the copies of summons addressed to Sobha, Chet Ram and Roshan respectively. Ex.R-1 to Ex.R-3 are allegedly signed by Kamla Devi. It is clear from the statement of RW-2 Vinod Kumar, Process Server that he did not know Kamla personally nor he made an attempt to get identify Kamla to the effect that she jointly lived with Sobha and Roshan. AW-2 Chet Ram has denied that his wife Kamla had received the summons on their behalf. AW-3 Kamla Devi has denied her signatures on Ex.R-1 to Ex.R-3. There is no corroborative evidence to show that AW-3 Kamla Devi in fact had received summons Ex.R-1 to Ex.R-3. The statement of RW-2 Vinod Kumar, Process Server is very shaky and does not inspire confidence to prove that he served Sobha, Chet Ram and Roshan through AW-3 Kamla. The learned District Judge has rightly appreciated the material on record. The view taken by him emerges from the material on record.
10. It has not been proved on record that before proceeding exparte against Sobha, Chet Ram and Roshan in the suit, they were actually served. There is no merit in the revision.
11. In view of above, revision fails and is accordingly dismissed, so also the pending application(s), if any.
May 31, 2013 ( Kuldip Singh ), (GR) Judge.
3 issues framed by the court
Whether the ex-parte decree was passed without proper service of summons upon the respondents?
Whether the application filed by the respondents for setting aside the ex-parte decree is maintainable and within limitation?
Whether the learned District Judge correctly reversed the order of the Civil Judge dismissing the application?
2 provisions across 2 enactments
Mastu Ram
Sobha Ram
Kuldip Singh
Judge
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
