TMI Blog2008 (5) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... full knowledge of his correct address. 3. Assistant Collector, 1st Grade, Phagwara, while passing a judgment and order dated 26th November, 1997 observed that no notice could be served upon the appellant. 4. An application in terms of Order IX Rule 13 read with Section 151 of the Code of Civil Procedure was filed by the appellant herein alleging :- That the respondents-applicants were not at all served or notified in any manner whatsoever in the above partition proceedings. Neither any summons of this court nor any other process whatsoever of this court was ever served on the respondent-applicants. And the ex parte order dated 26.11.1997 mentioned is thus invalid, illegal and ineffective on the rights and title of the applicant-respondents in the land mentioned above and they are entitled to get it set aside. 5. Tehsildar, Phagwara, exercising his power as Assistant Collector, 1st Grade, as regards the service of notice upon the appellant herein, observed in the following terms :- On 3-7-1998, the file was presented and notice issued to the petitioner in the partition proceedings was received back un-served which is taken on record. It was reported that Kulwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether provisions of Code of Civil Procedure were applicable to partition proceedings and the revenue officers had jurisdiction to set aside the same or it is only a review application which is competent but, inasmuch as the matter has been discussed on merits as well as by learned Collector and the Commissioner and the findings recorded by the said revenue offices appear to be correct, it would be an exercise in futility to go into the question, as mentioned above. It was furthermore opined that the appellant has not suffered any prejudice. 10. Indisputably the authorities under the Punjab Land Revenue Act, 1887 (hereinafter referred to as the Act ) could entertain an application for partition of the joint family property. It lays down the procedures for summoning the parties, witnesses etc. For the said purpose it has the power of a civil court. Section 20 of the Act provides for the mode of service of summons, stating that the same shall be served personally on the person to whom it is addressed, or, failing him his recognized agent or an adult male member of his family usually residing with him. 11. Section 21 of the Act provides for the mode of service of notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation in the United States of America etc. cannot be said to be an effective service. With the development of science and technology the on-going statues cannot be construed in such a manner so as to take the society backwards and not forwards. [See State of Punjab Ors. v. M/s. Amritsar Beverages Ltd. Ors. 2006 (7) SCALE 587] 15. In this case there has been a clear fraudulent attempt on the part of the respondent No.4 to suppress the service of notice upon the appellant herein. The Tehsildar, in his judgment, has resorted to a peculiar logic. According to her, the provisions of Review were attracted and not under Order IX Rule 13 for setting aside the ex-parte proceeding. Even if that be so, the ex-parte decree, in our opinion, could have been set aside. She could have exercised her power of review. The commentary on which reliance was placed, was made on the basis of a decision of the Financial Commissioner in Hukam Chand ors. v. Malak Ram ors. [1932 (XI) The Lahore Law Times 42]. The said decision, with respect, does not lay down the correct law. All courts in a situation of this nature have the incidental power to set aside an ex parte order on the ground of viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice at that address. 19. In Great Punjab Agro Industries Ltd. vs. Khushian : (2005) 13 SCC 503 this Court held :- In view of the order that we propose to pass, it is not necessary to recite the entire facts leading to the filing of the present appeal. Suffice it to say that the suit was decreed ex parte by an order dated 16-4-1994. The application for setting aside the ex parte order has been rejected by the courts below. Hence, the present petition. The notice to the appellant is by way of substituted service. The substituted service was published in the Tribune and the Punjab Kesari which have circulation only in the State of Punjab. Admittedly, the appellant stays at Bombay. The newspapers in which the notice was published by way of substituted service, namely, the Tribune and the Punjab Kesari have no circulation in Bombay. Order 5 Rule 20(1-A) CPC enjoins that if the service of notice is by advertisement in the newspaper, it shall be in the daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided. In the instant case, the procedure prescribed under Order 5 Rule 20(1-A) with regard to substituted servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other side can be compensated by adequate costs and the lis decided on merits. 25. Yet again in Tea Auction Ltd. v. Grace Hill Tea Industry [(2006) 12 SCC 104] it was noticed:- 12. In G.P. Srivastava v. R.K. Raizada a similar question came up for consideration. A Division Bench of this Court opined that the provision under Order 9 Rule 13 of the Code of Civil Procedure should receive a broad construction and no hard-and-fast guidelines can be prescribed. The courts have a wide discretion to set aside an ex parte decree on satisfying itself as regards existence of a sufficient cause , opining: The sufficient cause for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause is made out for non- appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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