Judgment:
Jai Singh Sekhon, J.
1. Mst. Sant Kaur alias Basant Kaur, defendent-petitioner has filed this revision petition against the order of the trial Court dated 9th March, 1981, dismissing her application under Order 9, Rule 23 read with Section 151, Code of Civil Procedure for setting aside the ex-parte decree dated 15th November, 1956. She has also assailed the order of the learned District Judge, Hissar, dated 29th January, 1982 dismissing her appeal against the above referred order of the trial Court.
2. In brief, the facts relevant for the disposal of this revision petition are that on 28th November,1955, Khazan Singh and Budth Singh plaintiff-respondents filed a suit for possession of the land in disputed located in the revenue estate of Mohammedpur Rohi, Tehsil Fatehabad. District Hissar against Mst. Sant Kaur deferidant-petitioner. Mst. Sant Kaur failed to appear before the frial Court despite service having been affected on her by substituted service by publication of notice in the Haryana Sandesh. Accordingly, on 15th November, 1956 she was ordered to be proceeded against ex-parte. The ex-parte decree was passed against her on that very day i.e. 15th November, 1956. Thereafter, on 26th August. 1975, she filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree contending that she was not at all served in the parent suit and that the ex-parte decree was obtained at her back by the plaintiff-respondents She further maintained having never contracted Karewa marriage with Kartar Singh of village Dandrala Kharora, Tehsil Nabha. It was further averred that for the first time she learnt about the ex-parte decree on 13th August, 1975 when she contacted Khazan Singh plaintiff respondent in village Mohammedpur Rohi for realisiog the Batai and that on his refusal to pay the Batai, she engaged a lawyer who examined the file on 4th August, 1975 and came to know of the ex parte decree. Khazan Singh plaintiff-respondent resisted this application contending that the defendant petitioner had failed to attend the Court despite due service by publication of notice in the news paper. He further maintained that the defendant petitioner had affected Karewa marriage with aforesaid Kartar Singh and the remaining allegations of the defendant-petitioners were also controverted. In the alternative it was maintained that even if Mst Sant Kaur defendant-petit'oner had not contracted Karewa marriage with aforesaid Kartar Singh, he had become owner of the land in dispute by way of adverse possession.
3. In support of her case before the trial Court, the defendant petitioner examined herself as A.W 4, besides examining aforesaid Kartar Singh as A.W.I. Bachan Singh A.W. 2 of village Dandrala Kharore and Bant Singh as AW 3 of village Datewal. Khazan Singh plaintiff respondent appeared as R.W. 1 besides examining Amar Singh as R.W. 2.
4. The trial Court dismissed the application of the defendant- petitioner vide its order dated 9th March, 1981 by holding that the defendant petitioner was duly served through publication of notice in the news-paper and thus on her failure to appear on 15th November, 1956, she was rightly proceeded against ex parte The application was held palpably barred by time. The learned District Judge, Hissar vide his judgment dated 29th January, 1982 also dismissed the appeal of the defendant-petitioner by upholding the findings of the trial Court.
5. I have heard the learned counsel for the parties besides perusing the record.
6. Admittedly, Mst. Sant Kaur petitioner used to reside at village Detwal in District Ludhiana while the land in dispute is located in village Mobammedpur Rohi, Tehsil Fatehabad, District Hissar. The defendant-petitioner was proceeded against ex parte on 17th April, 1956 by the trial Court and thereafter some evidence of the respondents was recorded ex parte: As the witnesses of the plaintiffs failed to reveal the age of the defendant, the trial Court felt that further attempt be made for the service of the defendant. Summons were sent to the defendant on several occasions, but the same were refused as per interim order dated 31st August, 1956 of the trial Court. Ultimately her service was affected through publication of notice in Haryana Sandesh, Hissar and on her failure to appear before the trial Court on 15th November, 1956 she was proceeded against ex- parte. There is no evidence on the file to show that this news-paper had circulation in Punjab also. The very name of the news-paper being Haryana Sandesh implies that it being a local news-paper, had circulation in Hissar District only. According to the provisions of sub-rule (1-A) of Pule 20 of Order 5 of the Code of Civil Procedure if the Court opts to effect service on the defendant by an advertisement in a news paper, the news-paper shall be daily news paper circulating in, the locality in which the defendant is last known to have actually resided. Strange enough, the trial Court had not applied its mind while ordering that the defendant be got served by publication of notice in a local news-paper Haryana Sandesh without ascertaining whether it has circulation in Ludhiana District in Punjab also. It is not the case of Khazan Singh plaintiff that a copy of this newspaper was sent to Mst. Sant Kaur through post Under these circumstances it cannot be said that Mst Sant Kaur petitioner was duly served. The findings of a Single Bench of this Court in Baljit Singh Bhatia v. Kulwant Singh and Ors.., 1978 P. L. J. 287, can be safely referred to in this regard. Again, this Court in M/s Radha Balabh and sons v. Ganga Din Har Parshad, (1978) 80 P. L. R. 442., bad held that for substituted service under Order 5, Rule 20 of the Code of Civil Procedure of the defendant through publication of notice in the newspaper, the sending of the copy of the newspaper under postal cover is a must. Thus the finding of both the Courts below in this regard being erroneous are hereby set aside.
7. On the point of limitation, there is no dispute between the parties that the same will start running from the date of the ex-parte order or decree or when the applicant had knowledge of the decree. Mst. Sant Kaur had specifically stated in her application for setting aside the ex parts decree that she had learnt about the same on 13th August, 1975 for the first time when Khazan Singh plaintiff refused to give her Batai of the land in dispute. Admittedly, this land was being cultivated by Khazan Singh as tenant Thereafter she engaged a lawyer and got inspected the file from the record room on 14th August, 1975 and learnt about the details of the ex -parte decree. Strange enough in his reply Khazan Singh plaintiff had simply denied the above referred allegations of Mst. Sant Kaur but had not specifically contended that she never contacted him on 13th August, 1975 or that earlier she was informed of the ex-parte decree Under these circumstances, the delayed assertion of Khazan Singh R.W. 1 that Mst. Sant Kaur used to visit the village off and on to see her neice is of no consequence, especially when during cross-examination he had admitted that after the year 1952, Mst. Sant Kaur had left village Mohammedpur Rohi. The learned District Judge had given great importance to the fact that Mst. Sant Kaur would not sit silent for 19 years or that she would not approach Khazan Singh plaintiff for paying the Batai for this long period. It appears that the learned District Judge has not considered the other aspect of the case that Khazan Singh is the first cousin of the late husband of Mst. Sant Kaur and according to her used to give her Batai at village Datewal in Ludhiana District. In such cases where the relations of the late husband of a woman want to grab her land, there is nothing improbable in the conduct of the plaintiff for continuing giving her Batai even after the passing of the ex-parte order. It is the specific case of Mst. Sant Kaur that the plaintiff refused to pay her Batai for one year only on 13th August, 1975. If that is so, then there is no option but to hold that this rustic poor lady learnt about the passing of the ex -parte decree on 13th August, 1975. This application having been filed on 26th August, 1975, is thus well within the limitation of 30 days under Article 123 of the Limitation Act, as the limitation will start running from the date of her knowledge.
8. For the foregoing reasons, the impugned orders of the trial Court as well as that of the 1st Appellate Court being palpably wrong, are not sustainable having resulted in mis-carriage of justice, the same are, therefore, set aside by accepting this revision petition with costs throughout and ordering the restoration of the parent suit against its original number. The parties through their learned counsel are directed to appear before the trial Court on 25th May, 1989. The trial Court is directed to dispose of the suit expeditiously.