Judgment

Mr. Arun Monga, J.

Assailed herein are two orders viz. dated 27.01.2020 (Annexure P- 6) and 03.10.2022 (Annexure P-8) learned trial Court and Appellate Court, respectively, whereby application filed by defendant/petitioner under Order 9 Rule 13 CPC, seeking to set-aside ex parte judgment and decree dated 04.09.2018 (Annexure P-3), was dismissed.

2. Succinct facts, as pleaded in the revision petition.

2.1 Respondent/plaintiff filed a suit for possession by way of specific performance against petitioner/defendant on the basis of an alleged agreement to sell dated 23.06.2015, stated to be executed by petitioner in respect of a house constructed over an area measuring 06 Marlas. Total sale consideration per agreement is claimed to be Rs.2 lakh with date for registration of sale deed fixed on 30.12.2015 and a sum of Rs.60,000/- was paid to petitioner by respondent as earnest money.

2.2 Learned trial Court issued notice to petitioner. Per judicial record, he was served, but chose not to appear. He was accordingly proceeded ex parte vide order dated 21.08.2017 after relying upon report of process server dated 04.08.2017 (Annexure P-2). Learned trial Court on the basis of evidence produced by respondent/plaintiff decreed the suit filed by respondent herein vide ex-parte judgment and decree dated 04.09.2018 (Annexure P-3).

3. After obtaining the ex parte decree, the respondent filed execution application. Upon munadi, the petitioner came to know about the judgment and decree. He immediately moved an application under Order 9 Rule 13 CPC, which was eventually dismissed by the trial Court vide impugned order dated 27.01.2020 Annexure P-7. The petitioner’s appeal against the same was also dismissed by the learned Appellate Court vide impugned order dated 03.10.2022 Annexure P-8.

4. Learned senior counsel for petitioner, Mr. Sanjay Majithia, argues that both Courts below placed over-emphasis on the service report of process server (Exhibit D-1). He would urge that sole residential house of petitioner is subject matter of civil suit where he along with his family is residing and there was no reason for petitioner to remain absent and not contest the suit. The report of process server is shrouded with suspicion.

5. Per contra, Mr. Sunil Agnihotri, learned counsel for respondent supports the impugned orders. He submits that signatures of petitioner were obtained by process server as per due procedure. It cannot thus be said that he was never served. When petitioner himself chose not to appear before learned trial Court, he was rightly proceeded against ex-parte. It does not now lie in the mouth of petitioner to turn around and say that he was never served. Especially, when he did not dispute his signatures on the summons.

6. I have heard rival contentions and perused the case file.

7. Plaintiff on the basis of the ex parte decree, instituted the execution proceedings and that is when petitioner claims that he came to know of the fact of filing of suit for specific performance against him. He then took immediate steps to file an application under Order 9 Rule 13 CPC seeking to recall ex parte decree. While upholding dismissal of application by trial court, following are the reasons given by learned First Appellate Court in impugned order dated 03.10.2022:-

“So as the things stand out, the main question which is begging for the answer is that whether applicant/ defendant/appellant was served in the main case and whether he signed on the summons. Perusal of the original file shows that notice was issued to applicant/defendant/appellant to appear in the Court to contest the suit of plai