JUDGMENT :

Pankaj Jain, J. (Oral)

1. Present revision petition is directed against the order dated 18th of September, 2023 passed by Civil Judge (Junior Division), Ludhiana allowing the application filed by respondent No.1 under Order IX Rule 13 CPC setting aside ex parte judgment and decree dated 3rd of October, 2022.

2. For convenience, the parties hereinafter are referred to by their original position in the suit i.e. the petitioner as the plaintiff and the respondents as the defendants.

3. Plaintiff filed suit against his son and daughter-in-law seeking decree of mandatory injunction directing the respondents to vacate part of house in their possession and further seeking decree of permanent injunction seeking restrain against the defendants from parting with the possession of the said portion and from transferring possession of the same to any other person. Further relief sought was for recovery of mesne profits @ Rs.10,000/- per month from the date of filing of the suit till the vacation of the property. Defendants were proceeded ex parte vide order dated 22th of November, 2021. Suit filed by the plaintiff was decreed by Civil Judge (Junior Division) Ludhiana vide judgment and decree dated 3rd of October, 2022.

4. Respondent No.1 filed application under Order IX Rule 13 CPC for setting aside the ex parte judgment and decree dated 3rd of October, 2022 pleading that she was married to son of the plaintiff on 29th of January, 2017 and came to her matrimonial house i.e. the house in question. Out of the wedlock, one son namely Jaivir Singh was born on 29th of December, 2017. After sometime, few differences cropped up between the husband and wife. Panchayat was convened. As per the decision, both the respondents were given first floor of the house and were permitted to live separately from the plaintiff. After couple of months respondent No.1/husband abandoned her and started residing with his parents on the ground floor. In order to get rid of respondent No.1, the plaintiff as well as his son hatched a conspiracy and filed present suit. No summons or registered cover was ever served upon the wife i.e. defendant No.2. It is only a day prior to filing of the application under Order IX Rule 13 CPC that she received a telephone call from Head Constable Major Singh on the mobile phone of her brother asking her to collect the goods lying in the street after the Court officials handed-over vacant possession to the decree-holder.

5. Application was contested by the plaintiff/petitioner. It was claimed that defendant No.2 was properly served and having failed to appear despite service, she was rightly proceeded against ex parte. Trial Court framed the following issues in the application under Order IX Rule 13 CPC :

'1. Whether the exparte judgment and decree dated 03.10.2022 in CS no. 5551/2021 passed by Sh Sumit Garg the then CJJD Ludhiana is liable to be set aside on the grounds mentioned in the application by the applicant? OPA

2. Whether present application for setting aside the judgment and decree dated 03.10.2022 in CS no. 5551/2021 passed by Sh Sumit Garg the then CJJD Ludhiana under Order 9 Rule 13 is not maintainable? OPR

3. Whether the applicant (respondent no. 2) has no locus standi to file the present application? OPR

4. Whether the applicant has no come to the court with clean hands and suppressed the material facts from the court? OPR

5. Whether the present application is bad for misjoinder and non joinder of necessary parties? OPR

6. Relief.'

6. Both the parties led their respective evidence. Trial Court after analysing the evidence threadbare came to the conclusion that from the records of the case, it is evident that the summons were received by defendant No.1 on behalf of defendant No.2. She was never informed by her husband regarding any summons received by him on her behalf. Sukhminder Singh, plaintiff while appearing as RW-1 admitted that applicant Ramandeep Kaur was residing in the same house wherein defendant No.1 was serve