Exparte Decree--Setting aside of--Report of process server and munadi kalinda can be discarded on basis of strong and cogent evidence that such report was managed

JUDGMENT

Mr. Amit Rawal, J. (Oral):- The present revision petition is directed against the order dated 25.02.2010 passed by the Additional Civil Judge (Sr. Division), Naraingarh and the judgment dated 13.08.2012 passed by the Additional District Judge, Ambala whereby application of the petitioners-defendants filed under the provisions of Order 9 Rule 13 CPC read with Section 151 CPC for setting aside the ex parte order dated 10.04.1997 and decree dated 03.03.1998 has been dismissed.

2. The respondent-plaintiff No.1 filed suit for specific performance of agreement to sell dated 26.4.1995 against defendants No.1 to 3 in respect of land measuring 33 kanals for total sale consideration of Rs. 1,77,000/- against payment of Rs.54,250/- as earnest money by challenging the sale deed dated 26.8.1996 executed by defendant No.1 in favour of defendants No.2 and 3. The target was stipulated as 15.06.1995, which was extended till 31.12.1996 on payment of Rs.10,000/- on 14.12.1995 but defendants played fraud upon him by selling 24 kanals of land vide sale deed ibid. The petitioners defendants contested the suit but did not appear and proceeded ex parte on 10.04.1997, resulting into ex parte decree dated 03.03.1998. The application under Order 9 Rule 13 CPC was filed on 16.10.1999 but the same has been dismissed.

3. Mr. Pritam Singh Saini, learned counsel appearing on behalf of the petitioners submitted that no registered cover or munadi with the plaint was filed by respondent No.1-plaintiff despite the order of the Court. Surinder Kumar Bansal, petitioner No.1, was posted as Executive Engineer and petitioner No.2 was studying in Thapar College, Patiala but in the suit their addresses at Panchkula were given, therefore, report on the summons was procured. Summons were not in the prescribed format and the report dated 17.02.1997 revealed that petitioners-defendants were avoiding service, which is not comprehendible as it has been proved through evidence regarding the posting of defendant No.2 at the relevant time. The execution application bearing No.14 dated 17.4.1998 was filed and on acquiring knowledge on 03.10.1999, immediately the application for setting aside the ex parte judgment and decree was filed by defendants No.2 and 3.

4. Pritam Kaur received intimation of ex parte judgment and decree when received summons in proceedings setting aside ex parte decree and filed separate application.

5. Surinder Kumar Bansal was examined as AW2 and submitted that he was on inspection tour of canals in Amloh area, which has been proved through the log book Ex.A4 but the Courts below non-suited the petitioners-defendants by relying upon the cross-examination when with regard to question whether house No.326, Sector 7, Panchkula owned by him and residing there along with family, the answer was in affirmative. AW5 Chander Singh, Senior Assistant from the office of Executive Engineer, Devigarh Division, Patiala deposed that the petitioner-Surinder Kumar Bansal was posted as Executive Engineer w.e.f. 28.06.1996 to 10.06.1997 and was required to remain in official residence at Devigarh for 24 hours. AW6 Chowkidar of the house of the petitioner at Panchkula also deposed regarding posting of the petitioner at Patiala.

6. Avtar Singh himself examined as RW1 and produced RW2 Ashwini Kumar, Process Server and RW3 Mukhtiar Singh, Process Server. No procedure of effective service through registered cover as per Order 5 Rule 19A CPC was adopted. Munadi was also conducted at the same address in the same manner. The trial court unnecessarily decided the suit and by that time, suit would have been decided on merit had there not been strong opposition of setting aside ex parte judgment and decree.

7. Mr. Veneet Soni, learned counsel appearing on behalf of the respondent-decree holder submitted that revision petition bearing No.1335 of 2013 filed by the legal representatives of defendant- Pritam was dismissed on 04.03.2013, therefore, the present revision petition is n