VINOD K.SHARMA, J. - (1.) PRESENT appeal has been filed against the order passed by the learned Additional District Judge, Moga vide which the appeal filed by the respondent-defendant for setting aside ex parte decree has been accepted.
(2.) THE respondent herein had filed an application under Order 9 Rule 13 of the Code of Civil Procedure (for short the Code) for setting aside ex parte on the following grounds :- "(a) In this case the summons was not duly served to the applicant-defendant. (b) No valid service had been effected in this case. (c) The plaintiffs obtained the ex parte decree by way of practising the fraud and impersonating to get the case decided ex parte in their favour. The respondents/plaintiffs have no concern or connection with the suit property. The applicant/defendant is the absolute owner of the suit property. The applicant/defendant presumes that the plaintiffs obtained the decree by way of preparing the forged and fabricated revenue documents. (d) The applicant/defendant had no knowledge of this ex parte decree dated 23.1.1983. The applicant/defendant come to know on dated 20.3.1985 from Shri K.K. Gupta, Advocate that an ex parte decree has been passed against the applicant/defendant on dated 23.1.1983. The previous counsel of the applicant/defendant did not told about any ex parte decree passed against the applicant/defendant." The application was contested by the appellant-plaintiffs and on the pleadings of the parties the following issues were framed :- "1. Whether Gurbax Singh, respondent/plaintiff had died before filing of the present application ? If so, its effect ? OPR 2. Whether there is any sufficient cause for setting aside the ex parte decree dated 21.1.1983 ? OPA 3. Whether the application is within time ? OPA 4. Relief." Issue No. 1 was decided against the appellant-plaintiff whereas on issue No. 2 learned trial Court held that respondent-defendant was duly served, he intentionally did not come present in the Court and he was rightly proceeded ex parte.
(3.) EVEN on issue No. 3 it was held that the application was barred by time and in view of the findings recorded on issue Nos. 2 and 3 the application was dismissed. The respondent-defendant filed an appeal against the said order. The learned Appellate Court accepted the appeal by observing as under :- "Perusal of para 2 of such photostat copy of judgment shows that though notice of suit was issued to defendant but he did not appear, then he was proceeded against ex parte. It is not clear as to how defendant was served and whether he was personally served or through some adult members of his family or through Munadi or through Court notice, has not been clarified. It has not been proved that defendant was served personally with the summons. When there is lack of evidence, it cannot be presumed that the defendant was personally served with summons. Rather for want of such proof presumption whatever can be raised, in favour of contention of defendant-applicant because settled position of law is that a fact affirmed by a party is required to be proved by affirmative tangible convincing judicial evidence. Therefore, it is liable to be presumed with summons in civil suit No. 212 of 5.8.1982. 15. In para No. 3 of photostat copy of judgment whatever evidence was led by plaintiff was mentioned. In para No. 4 of same copy of judgment discussion is contained." ;