Birbal vs Fakiria and Others

Mahesh Grover, J.—The petitioner is aggrieved by the order dated 19.1.2009. He had moved an application under Order 9 Rule 13 CPC praying for setting aside the ex-parte decree passed against him, which had the effect of partitioning the property, on the basis of a false report of the process server who had reported that the petitioner had refused to accept the summons leading to the ex-parte proceedings being conducted against him.

During the course of hearing of the application under Order 9 Rule 13 CPC, the respondent concluded his evidence on 1.12.2007. Thereafter, he moved an application on 6.6.2008 praying that the process server be summoned so that he could be examined regarding the report of service. The prayer had been allowed by virtue of the impugned order which is the cause of grievance to the petitioner who has contended before this Court that whether the report of the process server was correct or not was the only issue as this would have sufficiently indicated whether the petitioner was justifiably precluded from appearing in the proceedings before the trial court or not, and the respondent having not examined the process server in the first instance cannot be permitted to examine him since this would amount to filling up the lacuna left by the respondent. Learned Counsel for the petitioner further contended that in an area which was 1 kanal 11 marlas the petitioner and respondent No. 1 were co-sharers to the extent of 1/5th share each. The petitioner had purchased the share of the respondent more than a decade and half back which is reflected from the Bahi entries which have been thumb marked by the respondent. He thus contended that the preliminary decree and the final decree obtained by the respondent No. 1 against him in ex-parte proceedings is a dishonest attempt by the respondent to retrieve the possession from him.

Learned Counsel for respondent No. 1, on the other hand, has referred to the impugned order to say that it was due to the inadvertent mistake of the counsel that the process server could not be examined and therefore no injustice has been done to the petitioner.

I have heard the learned Counsel for the parties and have perused the impugned order.

There seems to be no infirmity in the impugned order as the prayer of respondent No. 1 has been allowed keeping in view the fact that the Court was concerned with the proper adjudication of the matter and to enhance the substantial justice between the parties. However, the trial court did not appreciate in correct perspective the fact that respondent No. 1 had concluded his evidence in affirmative in 2007 and had filed the application belatedly and had not summoned the process server to substantiate his case even though this was the sole issue before the trial court and respondent No. 1 was expected be alive to the situation and in this view of the matter to condone the lapse by imposing Rs. 1,000/- as costs would not have justified the circumstances in which the order has been passed. The petition being without any merit is dismissed. However, the respondent No. 1 is burdened with costs of Rs. 20,000/-.