Satya Devi vs Gulzar Singh
- Court
- Punjab and Haryana High Court
CR CR-5813 CR CR 5813 5813-2018 5813 2018 2018 2018 (O&M) (O&M) (O&M) (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
AT CHANDIGARH AT CHANDIGARH AT CHANDIGARH
CR CR-5813 CR CR 5813 5813-20 5813 20 2018 20 18 18 18 (O&M) (O&M) (O&M) (O&M)
Reserved on Reserved on:01.10 Reserved on Reserved on 1.10 1.10.2026 1.10 .2026 .2026 .2026
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Satya Devi
...… Petitioner
Versus
Gulzar Singh
.......Respondent
CORAM: CORAM: CORAM: CORAM: HON'BLE MS. JUSTICE HARPREET KAUR JEEWAN HON'BLE MS. JUSTICE HARPREET KAUR JEEWAN HON'BLE MS. JUSTICE HARPREET KAUR JEEWAN HON'BLE MS. JUSTICE HARPREET KAUR JEEWAN
Present: Mr. Arun Takhi, Advocate,
for the petitioner.
Mr. Manish Dadwal, Advocate,
for the respondent.
HARPREET KAUR JEEWAN, J. HARPREET KAUR JEEWAN, J.
HARPREET KAUR JEEWAN, J. HARPREET KAUR JEEWAN, J.
1. By way of filing present Revision Petition under Article 227 of the
Constitution, the petitioner-defendant has impugned the order dated 05.12.2006
(Annexure P-2), whereby, she was proceeded against ex parte by the trial Court;
ex parte judgment and decree dated 22.08.2007 (Annexure P-3); and order
dated 31.07.2017 (Annexure P-7), dismissing the application of the petitioner
under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, ‘the
CPC’) . Challenge has also been laid against the order dated 28.05.2018
(Annexure P-8), passed by the Additional District Judge, Hoshiarpur, thereby
dismissing the appeal of the petitioner against order dated 31.07.2017 aforesaid.
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2. Briefly stated facts of the present case are that the respondent-
plaintiff filed a suit for possession by way of specific performance of an
agreement to sell dated 21.10.2005, entered into between the parties regarding
a house measuring 1440 sq. ft., out of the total land measuring 268 Kanals 17
Marlas, fully described in the head-note,. During the trial, vide order dated
05.12.2006 (Annexure P-2), the defendant was proceeded against ex parte and
she was also restrained from alienating the suit property, except in favour of
the plaintiff, till final disposal of the case. Ultimately, on 22.08.2007
(Annexure P-3), an ex parte decree was passed against the defendant by the
trial Court.
2.1 Thereafter, an application under Order 9 Rule 13 read with Section
151 CPC was moved by the defendant on 06.11.2007 (Annexure P-4), alleging
therein that she was neither served, nor she received any summons in the suit.
Even the address of the defendant in the title of the suit is not specific and only
mentioned as ‘Shivalik Colony, Hoshiarpur’; she is an illiterate lady and she
has never executed said agreement to sell in favour of the plaintiff in respect of
her only residential house; the alleged agreement to sell is a result of fraud and
misrepresentation. It was specifically alleged that one Naranjan Singh used to
work for collection of committees and had obtained her signatures on stamp
papers as well as some blank papers as security for the committee. On coming
to know about the impugned ex parte decree in the last week of October 2007,
she immediately applied for certified copy of the decree and instituted the
application.
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2.2 In support of her assertions, the defendant examined Harbhajan
Kaur, ex-Municipal Councillor of Shivalik Colony as AW-1, who has deposed
that she herself is residing at Shivalik Colony and known to Satya Devi,
defendant. She stated that she had been the Municipal Councillor from 1998 to
2013. She stated that Shivalik Colony is situated in the revenue estate of
Bajwara; photographs Marks B to D were that of the house of the defendant;
The lumberdars of the revenue estate of Barwara are Ram Dass and Gurmit
Chand. She stated that whenever any munadi is to be effected in Shivalik
Colony, she is joined in the proceedings by process server, but in the present
suit, no one ever came to her to locate the address of Satya Devi. During cross-
examination, she could not tell the khasra number wherein house of the
defendant was situated; she was also unable to tell the same of the process
server, who ever came to her during routine service of summons of the Shivalik
Colony. She also could not tell about any court or court case, wherein process
server joined her as witness during service of summons. She was also not
aware as to who had clicked the photographs Marks B to D.
2.3. The defendant-applicant Satya Devi, herself stepped into the
witness box as AW2, and tendered into evidence her duly sworn affidavit,
Ex.AW2/A. In her cross-examination, she admitted that plaintiff-Gulzar Singh
had filed a suit for specific performance against her, which was decreed on
22.08.2007. However, she pleaded ignorance about the subsequent execution
proceedings or that the sale deed was impounded by Collector and released
only after depositing Rs.87,700/- as stamp duty. She also did not know that
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mutation of the property in question has been sanctioned and entered on the
name of Gulzar Singh.
2.4 Sukhdev Lal, Process Server, was examined as AW3, who proved
that he took summons of Bakshi Ram, Process Server and found that Bakshi
Ram had already expired. She proved his report to this effect on the summons
as Ex.AW3/A. He further deposed that he took the summons of Chander
Mohan, Process Server, and found that he had also expired and his report to
this effect was proved as Ex.AW3/B.
2.5. Respondent-plaintiff Gulzar Singh contested the application by
examining himself as RW1; he tendered into evidence his affidavit as
Ex.RW1/A, copy of sale deed dated 07.02.2008 as Ex.R1; endorsement Ex.R2;
copy of judgment dated 22.08.2007 as Ex.R3; decree-sheet as Ex.R4; and copy
of order dated 22.05.2009 as Ex.R5. In his cross-examination, he deposed that
he knew Naranjan Singh since 1981 and is close to him. He denied that
Naranjan Singh knew Satya Devi on account of business of committees and got
blank papers and stamp papers signed from her. He admitted that Naranjan
Singh had told him specifically about the residence of Satya Devi; he had not
accompanied the Process Server at the time of serving summons to Satya Devi;
there is no signature of any person of Mohalla Shivalik Colony on the report of
Process Server; he was known to persons namely Rajinder Prashad and Prem
Chand, but could not tell their parentage and residence. he was not aware as to
who effected munadi . He also admitted that in the year 2005-06, Harbhajan
Kaur was Municipal Councillor of Shivalik Colony and Ram Dass was the
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Lumberdar. He denied that Satya Devi was never served and munadi was
never effected in the suit.
2.6. The respondent-plaintiff then examined Naranjan Singh who
admitted in his cross-examination that he knew Gulzar Singh since 1981 as
well as defendant-Satya Devi for the last 12-13 years, when she was staying in
Mohalla Islamabad. He has also admitted that in his presence, no Municipal
Councillor, Lumberdar signed over the report of Process Server, Bakshi Ram,
but volunteered that only Rajinder Kumar had signed the munadi . He further
deposed that he has not signed the munadi . He has also admitted that he
appeared as a witness in the proceedings of the civil suit, but denied his
connivance with Gulzar Singh.
2.7 Vide order dated 31.07.2017, the trial Court dismissed the
application under Order IX Rule 13 CPC. The appeal filed by the petitioner-
defendant against the said order also stood dismissed on 28.05.2018 by the
Additional District Judge, Hoshiarpur.
2.8 The petitioner-defendant is before this Court in present Revision
Petition.
3. Learned counsel for the petitioner-defendant submits that it has
been the consistent stand of the defendant that she was never served. Both the
process servers, who are stated to have effected service (both since died) were
not examined by the trial Court. Moreover, as per report of the Process Server,
there was no affixation done, which is violative of Order V Rule 17 CPC. It is
further contended that the witness who is alleged to have attested the report of
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refusal is an interested witness, since he is also cited as a witness to the alleged
agreement to sell. Cites Robin Thapa Vs. Rohit Dora, 2019 INSC 731 Robin Thapa Vs. Rohit Dora, 2019 INSC 731 .
Robin Thapa Vs. Rohit Dora, 2019 INSC 731 Robin Thapa Vs. Rohit Dora, 2019 INSC 731
4. Per contra , learned counsel representing the plaintiff-respondent
contends that the plaintiff has proved on record the original summon, munadi
Notice and original reports of both Process Servers, which are per se
admissible. The service of summons has also been proved by RW-2 Naranjan
Singh, who has identified his signatures on the summons issued on 24.10.2006.
Even on refusal of summons by the defendant, the Court did not proceed in
haste; it took further action to adopt substituted mode of service ( munadi ), to
fully satisfy itself that the defendant had been served.
5. I have heard considered the aforesaid submissions.
6. The pivotal point for consideration in this case is as to whether the
service of the defendant was duly effected before passing of the order of
proceeding against her ex parte by the trial Court in the main suit, which order
also forms the basis of all subsequent impugned orders including the ex parte
judgment & decree against the defendant.
7. The respondent-plaintiff has examined Naranjan Singh as RW-2,
who identified his signatures on the summons issued for 24.10.2006. However,
in his cross-examination, he admitted that he was closely associated with the
respondent-plaintiff. He has further admitted that neither the Municipal
Councillor nor any Lambardar had appended his signatures on the report of
Process Server Bakshi Ram in his presence. Thus, the testimony of this witness,
who admittedly had close association with the plaintiff and was also a witness
to the alleged agreement to sell forming the subject matter of the suit, requires
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careful scrutiny. In the absence of any independent corroboration, his
testimony alone cannot be considered sufficient to conclusively establish due
service upon the petitioner.
8. It is also noteworthy that Naranjan Singh was examined as PW-1
in the main suit and had supported the respondent-plaintiff regarding execution
of the alleged agreement to sell and payment of earnest money. The petitioner
has specifically alleged fraud and misrepresentation involving the said witness.
Though such allegations are yet to be adjudicated on merits, the admitted
relationship and association of the witness with the respondent-plaintiff assume
significance while examining the reliability of his testimony concerning service
of summons.
9. The respondent-plaintiff has also admitted that he did not
accompany the Process Server at the time of alleged service. He further
admitted that no person from Mohalla Shivalik Colony had signed the report of
the Process Server. The evidence concerning the munadi proceedings also does
not satisfactorily establish that the petitioner's residential address was properly
identified and that the proceedings were conducted in the manner recorded.
The testimony of Harbhajan Kaur, the then Municipal Councillor, though not
conclusive by itself, also assumes relevance when considered along with the
other circumstances emerging from the record.
10. It is true that both the Process Servers have since expired and,
therefore, could not be examined during the proceedings under Order IX Rule
13 CPC. However, the mere production of the original summons and reports of
the Process Servers cannot, in the facts and circumstances of the present case,
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dispense with judicial scrutiny of the manner in which service was allegedly
effected. In this regard, the relevant provisions of the Order IX CPC need to be
looked into, which read thus:-
“17. Procedure when defendant refuses to accept service, or cannot be
found.—Where the defendant or his agent or such other person as aforesaid
refuses to sign the acknowledgment, or where the serving officer, after using
all due and reasonable diligence, cannot find the defendant, who is absent
from his residence at the time when service is sought to be effected on him at
his residence and there is no likelihood of his being found at the residence
within a reasonable time, and there is no agent empowered to accept service
of the summons on his behalf, nor any other person on whom service can be
made, the serving officer shall affix a copy of the summons on the outer door
or some other conspicuous part of the house in which the defendant ordinarily
resides or carries on business or personally works for gain, and shall then
return the original to the Court from which it was issued, with a report
endorsed thereon or annexed thereto stating that he has so affixed the copy,
the circumstances under which he did so, and the name and address of the
person (if any) by whom the house was identified and in whose presence the
copy was affixed.
18. Endorsement of time and manner of service.—The serving officer
shall, in all cases in which the summons has been served under rule 16,
endorse or annex, or cause to be endorsed or annexed, on or to the original
summons, a return stating the time when and the manner in which the
summons was served, and the name and address of the person (if any)
identifying the person served and witnessing the delivery or tender of the
summons.
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19. Examination of serving officer.—Where a summons is returned under
rule 17, the Court shall, if the return under that rule has not been verified by
the affidavit of the serving officer, and may, if it has been so verified,
examine the serving officer on oath, or cause him to be so examined by
another Court, touching his proceedings, and may make such further enquiry
in the matter as it thinks fit; and shall either declare that the summons has
been duly served or order such service as it thinks fit.”
(emphasis supplied)
10.1 The aforesaid provisions of Order V Rules 17 and 19 CPC
contemplate compliance with the prescribed procedure and appropriate scrutiny
by the Court where summons are returned with a report of refusal or non-
service. Though the Process Server could not be examined, as he had already
died, but this fact has been overlooked by the Appellate Court as well as the
Court at the first instance dealing with application under Order IX Rule 13
CPC that the report of Process Server does not mention about affixation, which
omission remains a relevant procedural irregularity. The respondent-plaintiff
has placed reliance upon the report of munadi (Annexure P-10) as well;
however, it also does not establish that the substituted service was justified.
11. The cumulative effect of the aforesaid circumstances creates
serious doubt regarding the factum of due service upon the petitioner. The
burden of establishing that summons were duly served cannot be discharged
merely by relying upon the testimony of a witness whose association with the
plaintiff and involvement in the underlying transaction stand admitted,
particularly when the surrounding circumstances do not provide satisfactory
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corroboration. Consequently, it cannot be held that the petitioner was duly
served before being proceeded against ex parte .
12. In the facts of the present case, the petitioner has consistently
maintained that she had no knowledge of the proceedings and was deprived of
an opportunity to contest the suit. During her cross-examination also, nothing
favourable could be elicited that the defendant had, in any manner, a notice of
the date of hearing and had sufficient time to appear and answer the plaintiff's
claim.
13. Moreover, the decree in question concerns her only residential
house and has also resulted in execution proceedings and transfer of the
property. Although considerable time has elapsed, but the nature of the
valuable rights involved and the serious doubts surrounding service of
summons persuade this Court that the dispute deserves adjudication on merits.
The principle enunciated by the Hon'ble Supreme Court in Robin Thapa v. Robin Thapa v. Robin Thapa v. Robin Thapa v.
Rohit Dora, 2019 INSC 731 Rohit Dora, 2019 INSC 731 Rohit Dora, 2019 INSC 731 Rohit Dora, 2019 INSC 731 , also emphasizes that, as far as possible, lis ought
to be decided on merits.
14. Consequently, the present petition is allowed; the impugned order
dated 05.12.2006; the ex parte judgment and decree dated 22.08.2007; the
order dated 31.07.2017 passed by the trial Court, as well as the order dated
28.05.2018, passed by the Additional District Judge, Hoshiarpur, are quashed
and set aside.
15. The trial Court shall restore the Civil Suit to its original number
and proceed with the matter from the stage at which the petitioner was
proceeded against ex parte , in accordance with law. It is clarified that this
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Court has not expressed any opinion on the merits of the alleged agreement to
sell, and all questions arising therein shall be decided independently by the trial
Court on the basis of the evidence led by the parties.
16. Keeping in view the fact that the matter pertains to old litigation,
the trial Court shall make an endeavor to conclude the proceedings
expeditiously, preferably within a period of one year, without granting
unnecessary adjournments to either of the parties.
17. Pending miscellaneous application(s), if any, shall stand disposed
of.
12.11.2026 12.11.2026 12.11.2026 12.11.2026 [HARPREET KAUR JEEWAN] [HARPREET KAUR JEEWAN] [HARPREET KAUR JEEWAN] [HARPREET KAUR JEEWAN]
Atul Sethi JUDGE JUDGE
JUDGE JUDGE
Whether speaking/reasoned Whether speaking/reasoned Whether speaking/reasoned Whether speaking/reasoned : Yes/No Yes/No Yes/No Yes/No
Whether reportable Whether reportable Whether reportable Whether reportable : Yes/No Yes/No Yes/No Yes/No
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