Shri Mati Chhanno vs Bachan Singh

D.V. Sehgal, J.—Bishna and Rura were two brothers. Bishna had two sons, namely, ishar and Dalla. Smt. Chhanno petitioner is the daughter of Ishar. On the death of Ishar, she being the sole heir inherited his agricultural land and the mutation was sanctioned in her favour. Bachan Singh respondent is the son of Bakhtawar Singh son of Rura.

On 13-6-1979 Bachan Singh respondent filed a suit in the trial Court alleging that land measuring 22 kanals 12 Marias, which the petitioner had inherited from her father and was owned by her, was given by her to the respondent in a family settlement. He claimed that she delivered the possession of the land to him on 1-1-1979. He, thus, sought a decree of declaration against the petitioner to the effect that he had become the owner in possession of the suit land. The Trial Court ordered issuance of summons to the petitioner by ordinary way and by registered post for 1-8-1979. The respondent, however, did not file the registered cover. So, summons were not issued to her On 1-8-1979 the trial Court passed a fresh order for issuance of summons to the petitioner both by ordinary way and by registered post. The respondent did not file the registered cover again. So, no notice was issued to her by registered post Summons in the ordinary way were, however, issued. A report thereon was made by the Process-Server to the effect that the petitioner had refused service. When the suit came up before the trial Court for hearing on 19-9-1979, the petitioner was ordered to be proceeded against ex-parte on the basis of the aforesaid report on the summons. The respondent was directed to produce ex-parte evidence in support of his claim on 15-12-1979 on which date, however, no evidence was produced and the case was adjourned to 15-1-1980 for the production of ex-parte evidence by the respondent.

On 15-1-1980 Shri S.P. Sharma, Advocate, Kaithal, representing himself to be the counsel for the petitioner, filed an application on her behalf for setting aside the ex-parte proceedings. A statement was made by the counsel for the respondent that he had no objection if the ex-parte proceedings against the petitioner were set aside. On that very day, i.e. 15-1-1980, Shri S.P. Sharma, Advocate in turn filed a written statement on behalf of the petitioner wherein the claim in the suit of the respondent was admitted. On the strength of this admission, the learned Trial Court decreed the suit of the respondent vide its judgment and decree of the same date.

The petitioner filed an application u/s 151 CPC (for short ''the Code'') on 21-4-1983 wherein she alleged that she was never served in the suit. She did not engage any counsel. She had no knowledge of the ex-parte proceedings taken against her on 19-9 1179. She did not apply for setting aside those ex-parte proceedings nor did she file any written statement admitting the claim in suit of the respondent. She did not engage Shri S.P. Sharma Advocate as her counsel. She, therefore, made a prayer that the ex-parte decree being fraudulent should be set aside and she should be allowed to enter defence and contest the suit on merits. She did add that it appeared that the respondent obtained her thumb-impression on the Wakalatnama and certain papers and thus obtained the aforesaid orders and the decree. The application was opposed by the respondent.

The learned trial Court vide its order dated 14-8-1986 has dismissed this application. Aggrieved against this order, the petitioner has approached this Court through the present revision petition.

I have heard the learned counsel for the parties. I am of the considered view that the decree secured by the respondent should be set aside and the petitioner should be allowed to enter defence to contest the suit on merits Order V, rule 19-A of the Code, provides for simultaneous issue of summons to the defendant for service by post in addition to personal service. It lays down that the Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in rule 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent. The proviso to rule 19-A(1) no doubt lays down that nothing in this sub-rule shall require the Court to issue summonses for service by registeted post, where, in the circumstances of the case the Court considers it unnecessary. In a case where the Court does not make any order for simultaneous issuance of summons by registered post acknowledgement due in addition to personal service it can legitimately be deemed that the Court considered it unnecessary to issue summons for service by registered post. In the present case, however, the trial Court made specific orders on 13-6-1979 and 1-8-1979 for issuance of summons to the petitioner by registered post for appearance as defendant in the suit on 1-8-1979 and 19-9-1979 respectively. The respondent, however, did not comply with the orders of the Court and did not file registered cover. Thus, the report of alleged refusal of service of summons issued by ordinary way for 19-9-1979 could not be made the basis for taking ex-parte proceedings against the petitioner. I have no hesitation to hold that the petitioner was never served with any valid notice in accordance with law to appear as defendant in the suit. The order taking proceedings against the petitioner ex-parte passed on 19-9-1979 was, therefore, without jurisdiction.

The petitioner is an illiterate lady living in a village. The proceedings before the trial Court in the Civil Court on 15-1-1980 leave no manner of doubt that these were contrived and stage-managed by the respondent The respondent did not produce any evidence in support of his claim in suit on 15-12-197 and for this reason the case was adjourned to 15-1-1980 On that date, the application for setting aside the ex-parte proceedings was filed on behalf of the petitioner by Shri S.P. Srarma Advocate. The counsel for the respondent readily made a concession and the ex-parte proceedings were set aside. Instantly written statement on behalf of the petitioner was filed admitting the claim in suit of the respondent which led to passing of the decree on that very date. The petitioner could be expected to move an application for setting aside the ex-parte proceedings against her only if she was interested in contesting the suit What transpires from the proceedings held on 15-1-1980 in the trial Court is that Shri S.P. Sharma Advocate was in possession of an application for setting aside the ex-parte proceedings as also written statement admitting the claim in suit of the respondent. Both of them no doubt bear the thumb impression of the petitioner. Even the power of attorney in favour of the counsel bears her thumb impression. The petitioner was obviously not present in Court. Her presence is not recorded in the proceedings of the trial Court. In fact, had she been there, the trial Court might have recorded her statement on 15-1-1980. It is, thus, clear that written statement on behalf of the petitioner admitting the claim in suit of the respondent had been prepared in advance and was filed by Shri S.P. Sharma Advocate the moment the ex-parte proceedings were set aside by the learned trial Court.

I have already noticed above that the petitioner was the sole and exclusive owner of the land in suit which she inherited from her father Ishar. It is difficult to conceive what kind of family statement could take place between the respondent and the petitioner as alleged by him in his plaint. It is, however, a matter which was has to be decided on merits in the suit. The possibility, however, cannot be ruled out that the respondent instead of discharging the burden of proof by leading ex parte evidence in support of his claim in suit considered it more convenient and easy to get filed the written statement on behalf of the petitioner admitting his claim in the suit and secure decree on its basis.

The learned trial Court dilated in length on the question whether any particulars of fraud had been pleaded by the petitioner in her application and whether the fraud on the part of the respondent has been proved. In my view, it is not at all necessary to go into these technical questions when it is apparent that the ex parte order dated 19-9-1979 pissed by the Trial Court was without jurisdiction and the subsequent decree passed on the basis of the statement of the petitioner in the written statement was in the circumstances which are not above suspicion.

I, therefore, allow this revision petition without any order as to costs allow the application u/s 151 of the Code filed by the petitioner and set aside the decree dated 15-1-1980 passed by the trial Court in the civil suit filed by the respondent. The written statement parported to have been filed by the petitioner on 15-5-1980 admitting the claim in suit of the respondent shall not be treated as her written statement. The learned trial Court shall allow her to file her written statement contesting the suit on such grounds as are available to her and shall then proceed to decide the same on merits.

The parties through their learned counsel are directed to appear before the trial Court on 10-10-1988.