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GURBIR SINGH
Shri Krishan – Appellant
Versus
Prem Devi – Respondent
GURBIR SINGH, J.
1. Challenge in this revision petition filed under Article 227 of the Constitution of India is to the order dated 18.04.2013 (Annexure P-4), passed by learned Additional Civil Judge (Senior Division), Meham (for brevity – Trial Court) and the order dated 07.05.2015 (Annexure P-6), passed by learned District Judge, Rohtak, whereby application of the petitioner filed under Order 9 Rule 13 CPC has been dismissed by both the aforementioned Courts.
2. The brief facts, as culled out from the paper book, are that petitioner is defendant no.4 before the learned Trial Court. Plaintiff/respondent no.1 filed a suit against defendants no.1 to 4 for declaration with consequential relief of permanent injunction that the Wills dated 05.08.2022, 31.10.2022 and 10.02.2023 and mutation no.8258, sanctioned on the basis of said Wills, are null and void. The case of the plaintiff is that he is co-sharer in the land measuring 39 kanals 10 marlas, as mentioned in the heading of the plaint. The mother of respondent no.1/plaintiff and respondents no.2 and 3 was the owner of the suit land. She died on 11.05.2003. She was incapable of proper hearing. She was not mentally fit. Respondents no.2
The burden of proof lies on the party claiming lack of knowledge or refusal of summons, and the statutory provision does not allow the extension of the period of limitation on equitable grounds.
A defendant must demonstrate justifiable reasons for absence to succeed in an application under Order 9 Rule 13 CPC.
Service upon a family member constitutes valid service, and the question of knowledge and representation must be determined based on evidence.
The legal point established is that the process server's reports must be witnessed, and the court must record satisfaction of 'deemed' service. The petitioner should have been given an opportunity to....
The court affirmed that proper procedures for ex-parte proceedings were followed, and the petitioner had knowledge of the case, validating the ex-parte order.
The importance of satisfying the conditions for setting aside an ex-parte decree and the need for evidence to support claims in legal proceedings.
The judgment emphasizes the need for substantial justice over technical considerations, warranting a full-length trial to investigate rival claims and the theory of probability.
Timely filing and valid explanations for delays are crucial in applications to set aside ex parte judgments under Order 9 Rule 13 of the CPC.
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