114 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision:03.07.2025 Tej Pal ..Appellant Versus Puran Chand ..Respondent CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. H.N.Sahu, Advocate for the appellant Mr. Rajesh Duhan, Advocate for the respondent ANIL KSHETARPAL, J. (Oral)

I. Brief facts of the case:-

1. The appellant assails the correctness of the concurrent orders passed by the courts below while dismissing his application for setting aside ex-parte judgment and decree dated 21.11.2015. The respondent (Puran Chand) filed the suit for the specific performance of contract dated 07.07.2009 with a consequential relief of permanent injunction in which notice was issued to the appellant for 22.03.2012. The Process Server submitted the report that the appellant was not found at the given address, however, his mother Smt. Darshni refused to take the summons. The court in view of Order V Rule 15 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) which requires tendering of summons to an adult male member issued fresh notice. The Process Server vide report dated 26.02.2012 reported that the appellant has refused to accept notice. Subsequently, on the basis of this report, ex-parte proceedings were ordered against the appellant and the decree was passed. In execution petition, the appellant was served with a notice from the Executing Court and he appeared on 15.01.2017 and thereafter, filed an application under Order IX Rule 13 CPC on 15.01.2018.

2. The appellant, while filing the application to set aside the ex-parte decree submitted that he never refused to accept the summons from the court and the application has been filed within the prescribed time because he came to know of the ex-parte decree on 15.12.2017. It was submitted that the plaintiff has obtained a false report from the Process Server, which resulted in decree.

3. The application was contested by the respondent (plaintiff). The trial court culled out the following issues:-

“1) Whether the exparte order dated

22.03.2012 and exparte judgment and decree dated 21.11.2015 are to be set aside on the grounds mentioned in the application? OPA

2) Whether the present application is not maintainable in the present form? OPR

3) Whether the present applicant has not come to the Court with clean hands and has suppressed true and material facts from the Court? OPR

4) Whether the present application is barred by period of limitation? OPR

5) Relief.”

II. Evidence Adduced:-

4. The parties were allowed to lead evidence. The appellant (defendant) appeared as AW1 and tendered a copy of the summons dated 22.03.2012 and report dated 26.02.2012.

5. On the other hand, respondent appeared himself as RW1 and produced a copy of the decree and judgment dated 21.11.2015.

Both the courts dismissed the application filed by the appellant.

III. Arguments addressed:-

6. Heard the learned counsel representing the parties at length and with their able assistance perused the paperbook.

7. Learned counsel representing the appellant contends that it was incumbent upon the respondent to examine the Process Server, who has not been examined in order to prove the report of refusal. Moreover, the application for setting aside the decree has been filed within the prescribed time because the appellant came to know of ex- parte decree only on 15.12.2015 whereas the application was filed on

15.01.2018.

8. Per contra, learned counsel representing the respondent submits that the appellant knew about the ex-parte decree because he appeared through learned counsel on 15.12.2017 in the execution petition. But no application was filed to set aside ex-parte decree for a considerable period. He further submits that there is presumption of correctness in the report submitted by the Process Server, who is a Government servant and therefore, there is no substance in the present appeal.

IV. Analysis and Discussion:-

9. This Court has considered the submissions made by the learned counsel representi