J.V. Gupta, J. - (1.) THIS revision petition is directed against the order of the Additional District Judge Kuru kshetra dated May 6. 1987, whereby the order of the trial Court dismissing the application for setting aside the ex parte decree was maintained.
(2.) SHIV Mandir Asan filed the suit for the grant of the permanent injunction against Jeet Ram and two others on December 21.1982. The Petitioner Teet Ram Bazigar was arrayed as Defendant No. 3 in the said Suit. The trial Court ordered ex parte proceedings against him on January 24, 1983 asserting that he was served for that date, but had not appeared in spite of service. The other Defendants did not contest the case and the suit was, thus, ultimately decreed ex parte on March 17, 1983. Jeet Ram Bazigar, Defendant filed the application on May 26, 1933, for setting aside the ex parte decree alleging that he was not properly and duly served in the suit and that it was on February 2, 1983, that he purchased the property, in question, from the other two Defendants and he did not know of the litigation. It was on May 20, 1983 that he came to know of this, litigation and immediately thereafter, he filed the present application. That application was opposed by the Plaintiff. It was pleaded that Jeet Ram, Defendant, was duly served and that he had knowledge of the litigation right from the beginning and that his application was time -barred. The trial Court framed the issues and came to the conclusion that there was no sufficient ground for setting aside the impugned ex parte decree as the Defendant was duly served. Even if there was any irregularity in the service, the same could be ignored in view of the proviso to Order IX Rule 13, Code of Civil Procedure, (hereinafter called the Code). The application was also held to be time barred. Consequently, vide order dated December 6, 1985, the said application was dismissed. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and, thus, maintained the order dismissing the application. The learned Additional District Judge mainly relied upon the following provisions of Order IX Rule 13 of the Code, - - Provided further that no Court shall set aside a decree -passed ex -parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the Defendant had notice of the date of hearing and had sufficient time to appear and answer the Plaintiff's claim. The learned Counsel for the Petitioner submitted that in the present case, no summons were ever issued to the Petitioner. The only service on the Defendant was under registered cover which was sent to him under Order XXXIX Rule 3 of the Code, because ex -parte ad interim injunction order was obtained by the Plaintiff. According to the learned Counsel under Order XXXIX Rule 3 of the Code, no summons are required to be sent to the Defendant and, therefore, there was no service on the Defendant of the summons in the suit Thus, argued the learned Counsel, the view taken by the Courts below in this behalf was wholly wrong and illegal. He further argue that the proviso to Order IX Rule 13 of the Code was not attracted because it Will come into play only if there was any irregularity in the service of the summons, Since no summons what so ever was ever served on the Defendant, the question of irregularity, if any, did not arise. In support of the contention, the learned Counsel relied upon M/s Armeet Tools and Equipment Pvt. Ltd., Faridabad v. K.C. Ganesh, (1985) 88 P.L.R. 85, and Bheru Lal v. Shanti Lal : A.I.R. 1985 Raj. 53.
(3.) ON the other hand, the learned Counsel for the Plaintiff Respondent relied upon Risaldar Pakhar Singh v. Bhajan Singh, (1987) 91 P.L.R. 146, to contend that the provisions of the amending Act of the Code should be construed in such a way that the object of the amendment is not frustrated.;