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2011 Supreme(HP) 157
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
The Hon’ble Mr. Justice Rajiv Sharma, Judge.
Surjit Singh and another. ...Petitioners.
Versus
Smt. Indu. ... Respondent.
C. Revision No. 126/2009
Decided on:5.1.2011.
For the Petitioners:Mr. Rama Kant Sharma, Advocate.
For the Respondent:Mr. Neeraj Gupta, Advocate.
Proper service of summons is essential, and the failure to provide tangible evidence of service can lead to the setting aside of an ex parte decree.
Headnote:
Service of Summons - Civil Procedure - Evidence Act - [Code of Civil Procedure, Sections 114, 151, Order 9 Rule 13; Evidence Act, Section 114] - The court discussed the service of summons, the presumption attached under section 114 of the Evidence Act, and the rebuttal of this presumption. It highlighted the lack of tangible evidence to prove proper service and the failure to notify the defendant's power of attorney. The court found that the defendant was not served, leading to the setting aside of the ex parte decree and the dismissal of the review petition.
Fact of the Case:
The defendant was proceeded ex parte in a civil suit, and the ex parte decree was set aside. The plaintiffs filed a review petition, which was dismissed. The defendant claimed she was not served with the summons.
Finding of the Court:
The court found that the defendant was not served with the summons, and the orders setting aside the ex parte decree and dismissing the review petition were valid and proper.
Issues: Service of summons, setting aside of ex parte decree, review petition
Ratio Decidendi: The lack of tangible evidence to prove proper service and the failure to notify the defendant's power of attorney led to the finding that the defendant was not served.
Final Decision: The petition was dismissed with no costs.
Rajiv Sharma, J.
This revision petition has been preferred against the orders dated 21.5.2009 in petition No. 47 of 2003 and dated 29.9.2009 in petition No. 132 of 2009 passed by the learned Civil Judge (Senior Division), Una, District Una.
2. Material facts necessary for the adjudication of this petition are that petitioners-plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) filed a suit No. 45 of 2001 against the respondent-defendant (hereinafter referred to as ‘defendant’ for convenience sake). Defendant was proceeded ex Whether the reporters of the local papers may be allowed to see the Judgment? No parte on 15.1.2002. Thereafter ex parte decree was passed by the learned trial court on 28.5.2002 in favour of the plaintiffs. Defendant preferred an application under order 9 rule 13 of the Code of Civil Procedure for setting assigning ex parte decree dated 28.5.2002 passed in civil suit No. 45/2001. The same was allowed by the learned Civil Judge (Senior Division), Una on 21.5.2009 and an ex partedecree dated 28.5.2002 was set aside subject to costs of Rs. 1,000/-. The plaintiffs filed petition, under order 47 rule 1 read with sections 114 and 151 of the Code of Civil Procedure to review order dated 21.5.2009 passed in C.M.A. No. 47 of 2003.
3. Defendant had filed an application for partition through her power of attorney on 9.2.1999. The reply was filed by the plaintiffs to the same on 9.5.2000. The Tehsildar vide order dated 17.1.2002 directed the parties to approach the civil court for deciding the questions of title. This fact was not brought to the notice of the defendant that she was required to file a suit within a period of one month. She preferred an application on 6.5.2002 for restoration of partition application. The plaintiffs filed reply to the same on 19.12.2002. Thereafter, case was adjourned to 7.2.2003. Learned counsel appearing on behalf of the defendant came to know about the ex parte decree passed against the defendant only when he had gone through the reply filed by the plaintiffs on 19.12.2002. The Attorney of the defendant applied for the copies of order, which were received on 5.3.2003 and thereafter he contacted the defendant and inquired from her, if she has received summons in civil suit No. 45/2001. Defendant denied that she had received the summons and requested her attorney to immediately take steps for setting aside the ex partedecree. It is in these circumstances that the General Power of Attorney of defendant filed an application in the court of learned Civil Judge (Senior Division), Una on 10.3.2003.
4. Assistant Collector 2nd Grade, Una passed order dated 15.3.2001 vide Ex.RW-1/A. Assistant Collector 2nd Grade, Una submitted the file to Assistant Collector 1st Grade. Assistant Collector 1st Grade vide order Ex.RW-1/B dated 17.1.2002 directed the defendant to get the question of title decided from the civil court and take necessary steps in this regard within a period of one month. Ex.RW-1/C is the copy of order dated 25.3.2003 passed by Assistant Collector 1st Grade whereby partition application of the defendant was dismissed on the ground that as per the judgment of the civil court, she was no more owner of the land. Ex.RW-1/D is the copy of reply filed by the plaintiffs in the court of Assistant Collector 1st Grade. It was stated therein that the question of title has already been decided in civil suit No. 45/2001 on 28.5.2002. The plaintiffs have not supplied the information that the suit had been instituted against the defendant on 15.3.2001. Plaintiffs for the first time informed the defendant about the suit against her on 19.12.2002. An application was preferred by the defendants for setting aside the ex partedecree on 10.3.2003. The same was preferred beyond the period of 30 days. According to the defendant, the delay has occurred as her counsel read the reply on 7.2.2003 and thereafter her General Power of Attorney applied for the copy of order
