TaxTMI 
TaxTMI 
2008 (5) TMI 656
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....997 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 Kulwant Singh son of Uttam Singh is residing in foreign country and the original file was also not received in the court. The next date of hearing was fixed fo....
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....w 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, order or proclamation or copy thereof in the following terms : "21. Mode of service of notice, order or proclamation or copy thereof - A notice, order or proclamation or copy of....
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....o 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 violation of the principles of natural justice. We will deal with this aspect of the matter a little later. 16. A defendant in a suit has more than one remedy as regards setting aside of an ex-parte de....
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....cts 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 service has been violated. In the premises, it cannot be said that the summons upon the defendant were effectively served. In this view of the matter, the ex parte decree dated 16-4- 1994 is set aside." See also Naresh ....