In CR-1164-2020 (O&M)-PUNJ HC- P&H HC confirms ex-parte order as petitioner was unable to prove that she didn’t refuse summons and lead convincing evidence supporting plea of fabrication of server’s report Justice Manjari Nehru Kaul [20-05-2022]

Read Order: Savitri v. Manmati

Monika Rahar

Chandigarh, May 26, 2022: While dealing with a revision petition against the order of the Additional District Judge, Gurugram dismissing the application of the defendant (petitioner) for setting aside the ex-parte order passed against her, the Punjab and Haryana High Court has dismissed the revision petition on the ground that the petitioner was unable to prove her allegations that the summons were not served upon her and her husband had not refused to accept the same in his writing. 

Also, the Bench of Justice Manjari Nehru Kaul while pointing out that the petitioner failed to discharge the burden cast upon her to prove her allegations of fabrication and fraud played by the server in collusion with the respondent to allege that the summons were refused by her held, 

 “Except for her bald assertions, the petitioner failed to lead any convincing, much less cogent evidence in support of her plea of fraud.”

The Court was dealing with a revision petition filed under Article 227 of the Constitution of India for setting aside the order of the Trial Court and the judgment of the Additional District Judge, Gurugram vide which an application filed by the petitioner for setting aside the ex-parte order was dismissed. 

It was the case of the petitioner’s counsel that the respondent procured a fake report of refusal on the summons in collusion with the process server, and that the signatures appearing on the report were not of her husband. He further submitted that in fact the petitioner was never served in the suit in question because at the relevant time when the summons were stated to have been served, the petitioner was recovering from an operation and was on bed rest. 

He further submitted that the petitioner was an illiterate lady and a big fraud was played upon her. Therefore, the Counsel submitted that in the absence of any valid service of summons, due opportunity of hearing was not afforded to her. However, the Counsel added that as soon as the petitioner learnt about the ex-parte judgment and decree of the trial Court, she moved an application under Order 9 Rule 13 read with Section 151 CPC for setting aside of both the ex-parte order and the impugned judgment and decree, which were erroneously dismissed by the Courts below.

The respondent’s counsel, while vehemently opposing the above submissions, argued that the report of the process server evidently proved that the petitioner was fully aware about the pendency of the suit. He further submitted that the husband of the respondent in his reply against the complaint filed by the petitioner also mentioned about the pendency of the suit, hence, the submissions made by counsel for the petitioner that she did not have any knowledge about pendency of the suit in question deserved to be rejected. 

After considering the rival submissions, the Court observed that the petitioner in her application filed under Order 9 Rule 13 CPC took a categoric stand that since the summons were never served upon her and even the report of refusal was fraudulently procured by the respondent, she had no knowledge much less inkling about the pendency of the suit in question.

Thus, in order to adjudicate upon the claim of the parties, the Court perused the report of the server to observe that the petitioner refused to accept the summons. The Court further noted that the process server while stepping into the witness box duly proved his report and further deposed that when he went to the house of the petitioner for service of summons she refused to accept them, however, her husband, in his own handwriting wrote on the report that Savitri i.e. the petitioner was operated upon and was, thus, unable to move around. 

The server also deposed that the petitioner’s husband also wrote that the case be adjourned so that Savitri (the petitioner) could attend the Court and file her reply through her counsel after getting well and thereafter he affixed his signatures on the summons. 

Further, it was asserted by Justice Kaul that the onus of proving (beyond reasonable doubt) that the report of the server was fabricated and a result of fraud, was on the petitioner. 

Also, in respect of the petitioner’s denial of her husband’s signatures or his written endorsement on summons, the Court observed that the best witness to support her case of fraud would have been her husband, who was strangely not even examined by the petitioner to substantiate her plea of alleged fraud. 

In fact Raghbir Singh would have also been the best witness to deny his handwriting and signatures on the report, added the bench while holding that except for her bald assertions, the petitioner failed to lead any convincing, much less cogent evidence in support of her plea of fraud. 

Thus, in the facts and circumstances as enumerated hereinabove, the Court was not inclined to invoke its revisional jurisdiction to set aside the concurrent findings arrived at by both the Courts below.