H.S.BHALLA, J. - (1.) Having lost battle before the learned lower Court, the petitioner has knocked at the door of this Court through the petition in hand by virtue of which he has challenged the order dated 10.11.2008 passed by the Additional Civil Judge (Senior Division) Dera Bassi, Punjab vide which application under Order 9 Rule 13, Civil Procedure Code, filed by the respondent has been allowed.
(2.) THE other facts required to be noticed for the disposal of this petition are that the petitioner filed a civil suit for declaration to the effect that he is co-sharer to the extent of 1/2 share in the land measuring 14 Bighas 3 Biswas situated in village Singhpura, Tehsil Dera Bassi district Mohali, Punjab. The suit was filed on 7.3.2002 in which respondent was proceeded against ex parte vide order dated 26.8.2002 passed by the Civil Judge (Junior Division) which runs as under : "The registered notice was issued to the defendant on 25.7.2002. The registered notice and acknowledgment not received back. The statutory period of 30 days elapsed and raised the presumption that the defendant has been duly served. Case called several times since morning. Defendant has not come present. As such, defendant is ordered to be proceeded against ex parte. Now to come up for ex parte evidence of the plaintiff on 5.10.2002. Stay extended till then". 3. Ultimately, the learned lower court, after recording the evidence, vide its separate judgment dated 18.10.2004 passed an ex parte decree in favour of the petitioner. 4. The respondent moved an application under Order 9 Rule 13, Civil Procedure Code, through his General Power of Attorney Deepinder Singh Sekhon praying for setting aside the decree dated 18.10.2004 on the ground that he was not aware of the pendency of the suit and the passing of the ex parte decree in the said suit. The respondent further pleaded that he came to know through his attorney on 18.3.2005 when the petitioner threatened to sell the suit land. 5. A detailed reply has filed by the petitioner and the application was contested and through reply, it was pointed out that the same is not maintainable and the respondent had been served through registered post which was sent at Canada address and after awaiting a period of 30 days, he was proceeded ex parte and thereafter, the respondent executed a General Power of Attorney on 20.9.2002 in favour of Deepinder Sekhon for contesting the litigation pending against him in the Courts at Chandigarh. 6. The only point that survives for consideration before this court is - as to whether respondent has been duly served, if so, its effect ? 7. It appears that the respondent had been watching the proceedings and the pendeny of the present suit was within his knowledge. Though, I am conscious of the fact that in order to succeed, the petitioner is not to prove the knowledge on part of the respondent with regard to the pendency of the suit, but he must show and prove that the respondent was duly served and he was rightly proceeded against ex parte. 8. The respondent is trying to build up a castle on a sandy foundation. The respondent is not disputing his residential address furnished by the petitioner in the suit filed by him. The address of the respondent has been mentioned as "Daljit Singh Boparai son of Durlabh Singh, Resident of 5161, Category-I, Modern Complex, Manimajra U.T. also resident of 7 Sandyshores Dribe Bramption L = 6R Ontario (Canada) through his General Attorney Deepinder Sekhon son of Kulwant Singh, resident of H. No. 3213, Sector 32 Chandigarh. Meaning thereby that, at the relevant time, the respondent was residing at Canada. It is not the case of the respondent that petitioner has furnished a wrong address in the suit filed by him intentionaly and on the basis of that wrong address, he procured an ex parte decree against the respondent, which ultimately resulted into the passing of an ex parte decree. 9. Having gone through the assertions raised in the reply filed by the respondent, I find that he has no where disputed that he was not residing at the given address at the relevant time when registered notice was sent under the order of the court in order to effect service upon him. It is again admitted case that registered cover was not returned back by the postal authorities as unserved. In such like circumstances, the learned lower Court keeping in view the provisions of Order 5 Civil Procedure Code, has rightly raised a presumption in favour of the petitioner and against the respondent regarding due service. 10. Provisions of Order 5 Civil Procedure Code clearly spells out that where summons were properly addressed and duly sent by registered post with acknowledgement due, then the court could declare that the summons have been duly served. 11. It is crystal clear and is also admitted case of both the parties that the respondent was proceeded against ex parte on 26.8.2002 and thereafter execution of power of attorney in favour of Deepinder Sekhon by the respondent in the month of September 2002 clearly spells out that he was duly served through registered A.D. covers sent to him at the address which was not being disputed by him at Canada and this necessitated the execution of the power of attorney on 20.9.2002. Even on the General Power of Attorney dated 20.92002 (Annexure P-3), the same address has been mentioned by the respondent which has been shown by the petitioner in his suit. The General Power of Attorney clearly spells out that the same was executed in favour of Deepinder Sekhon to contest the proceedings going on in the court. For facility of reference, it may be relevant to reproduce the contents of the General Power of Attorney (Annexure P-3) which are as follows :- "This GPA is given on September 20, 2002. By Daljit Singh Boprai son of Shri Durlabh Singh Boparai of 5161, Modern Complex, Manimajra, Chandigarh, India at present residing at 7 Sandyshoes Drive Bramption L6R2112 Ontario I appoint my friend, Deepinder Sekhon of 3212, Sector 32, Chandigarh, India as attorney to be my attorney in accordance with the Power of Attorney Act and to do on my behalf anything that I can lawfully do by an attorney. 1. That I have some litigation matters that are pending in Chandigarh, Punjab, India against Dalip Kumar Ghai son of Jagmohan Lal Ghai. I am presently living in Canada at the above address and therefore I am unable to take care of my litigation matters in India. 2. My above mentioned attorney is authorised to do pairvi of my case and of all my litigation matters against Dalip Kumar Ghai son of Jagmogan Lal Ghai in the Province of Punjab in any Court and any Municipality and/or Corporation and in any other Government Departments in India. He is also authorized to appoint and hire any lawyer and counsel for me on my behalf for all my litigation matters in India. 3. The attorney can do everything which I can legally do including signing of any documents to be filed in any court, making statements and hiring counsel. He is also authorized to file revision and appeal of any case, if need be." 12. All this clearly spells out that the pendency of the suit was within the knowledge of the respondent and during the course of proceedings of the suit filed by the petitioner, respondent was duly served and since he did not appear, the court had no other option but to pass an ex parte order against him which was passed, to my mind. In accordance with law keeping in view the relevant provisions contained under Order 5 Civil Procedure Code. 13. Faced with this situation, learned counsel appearing for the respondent points out that since the respondent was residing outside India, a different procedure was required to be followed by the petitioner but this contention of the learned counsel can only be appreciated if the petitioner had built up a case that he had shown a wrong address in the suit filed by him, but the address is not being disputed by the respondent in any manner. Rather, it is conceded by the learned counsel for the petitioner that at the relevant time, the respondent was residing at the same address, which has been shown in the suit filed by him and this fact is further proved from the address mentioned by the respondent in the General Power of Attorney executed in favour of Deepinder Sekhon. The execution of the power of attorney in the month of September after the respondent had been proceeded against ex parte has added another nail to the coffin of the case of the respondent. 14. Notice was also sent along with registered cover at the address given above. Meaning thereby that, this is the correct address which the respondent has not disputed in any manner at the time of moving an application for setting aside ex parte decree. To my mind, the respondent has totally failed to rebut the presumption under Section 114-F of the Indian Evidence Act as the respondent has no where mentioned in the application for the residential address of the Canada was wrong or registered cover was not received at his residential address mentioned by the petitioner in his suit. Application under Order 9 Rule 13, Civil procedure Code is totally misconceived and further he same is not supported by an application seeking condonation of delay in terms of Article 123 of the Limitation Act. The trial Court allowed the application of the respondent under Order 9 Rule 13 Civil Procedure Code and set aside the ex parte decree dated 18.10.2004. All these facts and circumstances do spell out and leave no manner of doubt that respondent was duly served at his residential address at Canada and registered A.D. Cover sent to the respondent was not received back and the presumption raised by the trial Court was that respondent was duly served after a statutory period of 30 days was elapsed. At the cost of repetition, I would like to observe that respondent has not pointed in any manner that the residential address of Canada was incorrect or that he did not receive the registered A.D. cover and as already discussed above, presumption of service is fortified after the ex parte order dated 26.8.2002 was passed and the respondent immediately executed the General Power of Attorney on 20.9.2002 in favour of Deepinder Sekhon for appearing before the Court to defend his case pending against him. Learned counsel appearing for the petitioner has rightly submitted that except for the instant case, there is no other litigation pending between the parties. Learned counsel also pointed out that in a criminal complaint filed against the respondent he did not appear before the Court and was declared a proclaimed offender. Learned counsel has also placed on record a certified copy of the criminal proceedings pending before the concerned court. 15. The very fact that the General Power of Attorney dated 20.9.2002 was executed further proves that respondent was not only served but he was in the knowledge of the pendency of the suit as well and therefore, he executed General Power of Attorney by appointing Deepinder Sekhon to defend the case on his behalf, wherein he has submitted that he being in Canada, would not be able to take care of ongoing litigation matter with Dalip Kumar Ghai. Moreover, this General Power of Attorney has been specifically executed by the respondent qua only litigation matters with the present petitioner. Learned counsel for the petitioner further pointed out that the petition has not been supported by an application seeking condonation of delay in terms of Article 123 of the Limitation Act. Faced with this situation, learned counsel for the respondent vehemently argued that if the summons have been properly addressed, pre-paid and duly sent by registered post and notwithstanding the fact that the acknowledgement had been received back in the Court, presumption that summons have been served after 30 days would not be available in the present case as service was to be effected in Canada, i.e. out of India, and in such like circumstances, under the relevant provisions of the Code of Civil Procedure, the service alleged to have been effected on the respondent shall not be deemed to have been effected especially when the defendant-respondent resides out of India. 16. Having gone through the file of the learned lower court, which was requisitioned, this Court inquired from the learned counsel for the respondent as to wether the address mentioned in the registered cover is correct or the registered cover sent at the Canada address was, in fact, a correct residential address, he answered in the affirmative by admitting this fact that the address shown in the General Power of Attorney and by the petitioner in his suit is his correct residential address but he has not been able to show that the registered cover was received back unclaimed. The entire records of the trial Court was scrutinized and it was found that registered cover was also sent to the respondent at his residential address of Mani Majra at Chandigarh, which was received back unclaimed. No explanation could be furnished by the learned counsel for the respondent as to why the attorney did not appear before the court for almost three years. He had been authorized to appear on behalf of the respondent before the Court on 20.9.2002. All this clearly spells out that the respondent had been duly served and there fore, he executed General Power of Attorney for doing Pairvi in the litigation since he was residing in Canada and it appears that the respondent had been watching proceeding for three years and thereafter he moved an application for setting aside the ex parte decree through the Attorney Deepinder Sekhon. In the application for setting aside the ex parte decree, it is no where mentioned that registered cover was not received by him or that residential address mentioned by the petitioner on which registered A.D. cover was sent, was incorrect. It is settled law that the registered cover sent at the address of the respondent outside India if not received back within 30 days, the presumption is that there is due service. Only the respondent could show that he was not residing at the address on which registered cover was sent. In the instant case, it is proved on record by way of convincing evidence and there is strong presumption in favour of the petitioner and against the respondent that registered A.D. cover was sent at his correct residential address. 17. In M/s EMESS Advertising Service v. The Hindustan Times Limited, AIR 1998 Delhi 14, a Division Bench of Delhi High Court has held defendant has failed to show sufficient ground for setting aside ex parte decree. The Hon'ble Apex Court in catena of judgments has held that service would be deemed to be effected if the address is correct and stamp is properly affixed. 18. In Har Charan Singh v. Shiv Rani and others, 1981(2) RCR(Rent) 149 : AIR 1981 Supreme Court 1284, their Lordships of the Apex Court have observed in para 7 of the judgment as under : "7. Section 27 of the General Power of Act, 1897, deals with the topic - Meaning of service by post and says that where any Central Act or Regulation authorizes or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it by registered post, a letter containing the document and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing pre-paying and not posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the address or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under illustration (f) to S. 114 of the Indian Evidence Act whereunder it is stated that the court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumption both under S. 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the post man to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because in our view, the presumption raised under Section 27 of the General Clause Act as well as under Section 114 of the Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the post man or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumption that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act". 19. All this clearly spells out that the pendency of the suit was within the knowledge of the respondent and during the course of proceedings of the suit filed by the petitioner-plaintiff, respondent was duly served and since he did not appear before the court, the court had no other option but to pass an ex parte order against him which was passed, to my mind, in accordance with law and thereafter ex parte decree was passed in favour of the petitioner. 20. The authority cited above is fully applicable to the facts of the case in hand. On the strength of Har Charan's case cited (supra) this court is of the view that summons were duly served upon respondent at Canada together with the fact that General Power of Attorney was duly executed by the respondent in favour of Deepinder Sekhon authorizing him to safeguard the interest on his behalf in the case pending against him before the trial Court. In such circumstances, service cannot at all be disputed. In the final analysis, impugned order dated 10. 11.2008 passed by the trial Court is set aside and order dated 18.10.2004 vide which ex parte decree was passed, is restored. However, parties are left to bear their own costs. Revision petition filed by the petitioner stands allowed in the manner indicated above. Petition allowed.;