Improper service claims cannot void an ex parte judgment if the defendant had prior knowledge of the proceedings, as judicial efficiency must be upheld.

JUDGMENT :

Vikram Aggarwal, J.

The present revision petition is directed against the order dated 06.08.2024 (Annexure P-2) passed by the Court of learned Addl. District Judge, Jhajjar dismissing the appeal filed by the petitioner against judgment dated 28.05.2019 (Annexure P-1) passed by the Court of learned Civil Judge (Sr. Divn.), Jhajjar, vide which the application filed by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure , 1908 (for short the 'CPC') was dismissed.

2. For the sake of convenience and clarity, parties shall be referred to as per their original status.

3. The facts, in brief, are that Shamsher Singh (respondent No.1) instituted a suit (Civil Suit No.269 of 2013) against the present petitioner (Yashvir Saini) and one Rambati for possession by way of specific performance of agreement to sell dated 18.01.2006. The case set up was that vide the said agreement to sell, defendant No.1 had agreed to sell a plot measuring 700 sq. yd. to the plaintiff for a total sale consideration of Rs.850/-per sq. yd. Earnest money of Rs.1 lakh was paid and the sale deed was to be executed on or before 17.02.2006. Defendant No.1 did not put in appearance despite service as a result of which the suit was decreed ex parte vide judgment and decree dated 20.03.2014 (Annexure P-6). It would be relevant to note here that another suit (Civil Suit No.51 of 2014) instituted by Rambati against the present petitioner, again for possession by way of specific performance of agreement to sell, was consolidated with Civil Suit No.269 of 2013 and both the suites were decided together vide judgment and decree dated 20.03.2014. Whereas, the suit filed by Shamsher Singh was decreed, that filed by Rambati was dismissed.

3.1 An execution petition was instituted by the plaintiff (Shamsher Singh). When warrants of possession were issued, an application under Order 9 Rule 13 CPC (Annexure P-7) was preferred by defendant No.1 (present petitioner) for setting aside the ex parte judgment and decree dated 20.03.2014. The stand taken in the said application was that proper service in accordance with the provisions of CPC had not been effected upon defendant No.1 and that after a fake report of 'Ruh Posh' (evading service), Munadi was ordered, which was also not carried out in accordance with law. It was averred that even if the report of defendant No.1 evading service had come, the Court should have made more efforts to effect service by way of the normal process and should not have resorted to Munadi in the first instance. It was averred that even Munadi had not been carried out in accordance with law and that a rickshaw puller was engaged to carry out the Munadi.

4. The application was opposed by the plaintiff. From the pleadings of the parties, the following issues were framed:-

'1. Whether the petitioner is entitled for setting aside the ex parte orders dated 24.12.2007, and 29.05.2007, and ex parte judgment and decree dated 20.03.2014?OPP

2. Whether the petition is not maintainable in the present form?OPR

3. Relief.'

5. Parties led their respective evidence. Vide judgment dated 28.05.2019, the application under Order 9 Rule 13 CPC was dismissed. A first appeal was preferred which was also dismissed vide judgment and decree dated 06.08.2024 passed by the Court of learned Addl. District Judge, Jhajjar, leading to the filing of the present execution petition by defendant No.1 (present petitioner).

6. Learned counsel for the petitioner was duly heard.

7. It was strenuously urged by Mr. Harsh Kinra, learned counsel representing the petitioner that grave injustice had been caused to the petitioner on account of the faulty process adopted by the trial Court at the time of trial of the suit.