K. RAMAMOORTHY ( 1 ) THE respondent/plaintiff filed a suit for mandatory injunction to the defendant who is his tenant to remove unauthorised constructions made in the House No. A-75, Ramesh Nagar, New Delhi and for recovery of mesne profits from 15. 5. 1991 upto 31. 1. 2000 amounting to Rs. 27,000. 00 ( 2 ) THE suit was instituted on 7. 9. 1995 and summons in the suit was issued on 8. 9. 1995. Steps were taken by the plaintiff to serve the defendant and the defendant did not appear, therefore, he was set ex-parte. ( 3 ) ON 19. 5. 1997 the petitioner filed an application to set aside the order dated 24. 12. 1996 setting him ex-parte. That was opposed by the respondent/plaintiff. ( 4 ) BY order dated 4. 4. 1998 the application filed by the petitioner/defendant was dismissed by the learned Civil Judge. That is challenged in the revision petition. ( 5 ) THE learned Civil Judge in the order has said that the petitioner refused service and therefore, the service was declared sufficient and consequent on his nonappearance, he was set ex-partand the plea by the defendant that there was no service is not correct and there was no sufficient cause shown for his nonappearance and accordingly the learned Civil Judge dismissed the application. That is challenged in the revision by the defendant. ( 6 ) THE learned Counsel for the petitioner Mr. Bisaria submitted that the learned Civil Judge has come to a wrong conclusion that service was effected on the defendant that he refused to receive notice and the facts stated by the petitioner in the application for setting aside ex-parte order are true. According to the learned Counsel the learned Civil Judge has committed a very serious error and has resulted in manifest injustice and therefore, the order is liable to be set aside. Mr. Bisaria, learned Counsel submitted that the petitioner has got three years time under Article 137 of the Limitation Act, 1963 to file the application under Order 9 Rule 7. The learned Counsel submitted that the principle is it must be conclusively established that the notice was personally served upon the defendant and that is not shown. The Court should be lenient in considering the application for setting aside ex-parte order. The learned Counsel submitted that 4. 9. 1996 the learned Civil Judge noted: "defendant not served. The learned Counsel submitted that the principle is it must be conclusively established that the notice was personally served upon the defendant and that is not shown. The Court should be lenient in considering the application for setting aside ex-parte order. The learned Counsel submitted that 4. 9. 1996 the learned Civil Judge noted: "defendant not served. Issue fresh summon to the defendant on PF/rc for 6. 12. 1996. One copy of the summon be given dasti. " ( 7 ) ACCORDING to the learned Counsel for the respondent as per this order of the Court steps were taken. On 6. 12. 1996 the learned Civil Judge was on leave and matter was adjourned to 24. 12. 1996. On 24. 12. 1996 the learned Civil Judge passed the following order: "none for the defendant. Defendant has refused to accept the service of summon as per report of process server. Defendant had refused to accept the service of summons twice as per report of process server. Defendant is proceeded ex-parte. Case is now fixed for ex-parte evidence on 14. 3. 1997. " ( 8 ) THE argument by learned Counsel Mr. Bisaria is even though order was passed by the learned Civil Judge on 4. 9. 1996 when the learned Civil Judge was on leave on 6. 12. 1996 further proceedings taken by the plaintiff for service would not have any effect and therefore, order passed on 24. 12. 1996 setting the defendant ex-parte is not valid in law. The learned Counsel submitted when the Presiding Officer of the Court was on leave on 6. 12. 1996 the defendant ought not have the defendant set ex- parte. For this proposition learned Counsel relied upon the judgment of the Karnataka High Court reported in AIR 1985 Karnataka 175. The facts do not resemble the facts of this case. The facts of the case are these: The defendant in the suit for recovery of money appeared in Court after service and on 13. 12. 1977 he was supplied furnish, copies to the plaint. The suit was adjourned to 15. 11. 1997 for filing written statement. Again it was adjourned to 15. 12. 1997. Defendant to file written statement. As defendant did not appear he was set ex-parte on that day for plaintiff evidence the matter was adjourned to 9. 1. 1997. On 9. 1. 1978 the matter was adjourned to 17. 1. The suit was adjourned to 15. 11. 1997 for filing written statement. Again it was adjourned to 15. 12. 1997. Defendant to file written statement. As defendant did not appear he was set ex-parte on that day for plaintiff evidence the matter was adjourned to 9. 1. 1997. On 9. 1. 1978 the matter was adjourned to 17. 1. 1977 for plaintiff evidence and the suit was decreed. The defendant filed an application for setting aside the ex-parte decree stating he could not be present in the Court from 11. 1. 1978 to 12. 2. 1978 as his daughter-in-law was not doing well. That application was dismissed and that was taken up in revision in the Karnataka High Court. Argument on behalf of the defendant was that it was not necessary for the defendant the show cause as to why he was absent from 15. 1. 1977 or on other previous days and it is enough defendant shows sufficient cause for his absence on the day when the matter was set down for ex-parte hearing. The High Court referring to the order sheet produced by the learned Counsel for the plaintiff said: "6. Mr. Gopal, learned Counsel for the respondent-plaintiff, made available to me the certified copy of the order-sheet, it shows that the summons which was issued to the defendant and was returnable by 2. 4. 1977 was not returned and the case was called on 4. 4. 1977. On 4. 6. 1977 it was found that the defendant is served with summons by affixture of the same on his house. As that was not sufficient, fresh summons was ordered and was returnable by 8. 7. 1977. On 8. 7. 1977 the summons sent by registered post was served on the defendant. But the Judge was on leave on that day. Hence, the case was adjourned to 2. 8. 1977. On 2. 8. 1977, the defendant appeared through his Lawyer Shri M. S. S. and prayed for time on the ground that he had not received a copy of the plaint. It was adjourned to 31. 8. 1977, for supply of copy of the plaint to the defendant. As no copy was supplied even on 31. 8. 1977, the case was adjourned to 24. 9. 1977. As the Judge was on leave on that day, the case was adjourned to 13. 10. 1977. It is only on 13. 10. It was adjourned to 31. 8. 1977, for supply of copy of the plaint to the defendant. As no copy was supplied even on 31. 8. 1977, the case was adjourned to 24. 9. 1977. As the Judge was on leave on that day, the case was adjourned to 13. 10. 1977. It is only on 13. 10. 1977 that the copy of theplaint was furnished to the defendant and the case was adjourned for filing the written statement on the defendant to 15. 11. 1977. Again, on 15. 11. 1977, the revision-petitioner/ defendant sought for time for filing the written statement and at his request the case was adjourned to 15. 12. 1977 for the written statement of the defendant. On 15. 12. 1977, the defendant and his Counsel were absent and the written statement was not filed. Hence, the Court set ex-parte of the defendant and adjourned the case to 9. 1. 1978 for the ex-parte evidence of the plaintiff. On the same day a memo appears to have been filed by the learned Counsel for the defendant requesting the Court to note his appearance. On 9. 1. 1978 the Court found that defendant and his Counsel were not present. It also found that the plaintiff and his Counsel were also not present on that date. However, the Court itself adjourned the matter for plaintiff s evidence to 17. 1. 1978. On 17. 1. 1978, the matter was adjourned to 25. 1. 1978, for the evidence of the plaintiff. On that day, the plaintiff examined himself as Public Witness 1 and got marked Exs. P. 1 to P. 5 and the Court decreed the suit. " In para 7 the High Court has said: "7. I have referred to the said order-sheet in detail in order to show that even the plaintiff and his Counsel were not present on 9. 1. 1978. Order 9 Rule 8 of the Code of Civil Procedure, clearly lays down that if the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed. Notwithstanding that the Court suo motu adjourned the suit to the next date. This order made by the Court, adjourning the matter from 9. 1. 1978 to 17. 1. 1978, itself suffers from serious illegality. Notwithstanding that the Court suo motu adjourned the suit to the next date. This order made by the Court, adjourning the matter from 9. 1. 1978 to 17. 1. 1978, itself suffers from serious illegality. " ( 9 ) THE lower Courts concurrently found that defendant has shown sufficient cause for his non-appearance for the period from 11. 1. 1978 to 17. 7. 1978, but the lower Court took it into consideration the period prior to the date when the defendant was set ex-parte. It is under the circumstances the learned Single Judge of the Karnataka High Court set aside the order of the order of the Court and allowed the application under Order 9 Rule 7. ( 10 ) I fail to see how this would be of any help to the defendant in the instant case. Learned Counsel Mr. Bisaria referred to the following authorities: (1) Delhi Development Authority Vs. Shanti Devi and Another, AIR 1982 Delhi 159=20 (1981) DLT 415. (2) Smt. Kamal Ray Vs. Bhagabat Singh, AIR 1977 Ori 206 . (3) Nawabzada Mohd. Ishaq Khan Vs. The Delhi Iron and Steel Co. Ltd. , AIR 1979 All. 366 . (4) Pazheottal Nabeesu Vs. Pazhekottal Kunhamina, AIR 1978 Ker 143 . (5) Savitri Devi Vs. M/s. Puranchand, 1978 RLR 350 =13 (1977) DLT 7 (Delhi High Court ). (6) East India Cotton Manufacturing Co. Ltd. v. Ltd. Vs. S. P. Gupta, 930 28 (1985) DLT 22. (7) Sushil Kumar Saha Vs. Juran Chandra Saha, AIR 1993 Gau 48 . (8) Baldev Raj Gandok Vs. Kishan Singh Pasricha, 37 (1989) DLT 67. ( 11 ) IN the proposition that the Court has to take into account all the circumstances and the fact that the learned Judge was on leave on any day prior to the date the defendant was set ex-parte would be relevant. ( 12 ) THE learned Counsel for the respondent Mr. Chaudhary referred to the following judgments: (1) Savitri Devi Vs. M/s. Puran Chand, 1978 RLR 350 = 13 (1997) DLT7 (SC ). (2) Bhushan Tyagi Vs. Attar Kali, 19. 7 (41) DRJ 679=67 (1997) DLT 496. (3) M/s. Madan and Co. Vs. Wazir Jaivir Chand, 1988 (2) RCR (SC) 654. (4) Zulfiquar Hussain Vs. State of U. P. , AIR 1981 All. 408 (5) Food Corp. of India Vs. E. Kutapan, 1993 0 RLR 61 (SC ). (6) Krishan Kumar Aggarwal Vs. (2) Bhushan Tyagi Vs. Attar Kali, 19. 7 (41) DRJ 679=67 (1997) DLT 496. (3) M/s. Madan and Co. Vs. Wazir Jaivir Chand, 1988 (2) RCR (SC) 654. (4) Zulfiquar Hussain Vs. State of U. P. , AIR 1981 All. 408 (5) Food Corp. of India Vs. E. Kutapan, 1993 0 RLR 61 (SC ). (6) Krishan Kumar Aggarwal Vs. Ram Lal Kohli, 1987 (13) DRJ 280 . (7) Kanhaiyalal Vs. Mohanlal, AIR 1955 Ajmer 7. ( 13 ) NO one can have any quarrel for the proposition laid down in the above cases. It is not necessary to deal with the authorities cited by the learned Counsel for the parties. The question to be decided is whether there was sufficient cause shown by the defendant for his non-appearance had become necessary to notice what exactly had happened in the case. After summons were issued on 8. 9. 1995, the process server went to the premises to serve the summons on the defendant on 2. 2. 1995. A lady member of the family was present and the process server requested her to receive the summons but the lady declined to accept the same on the plea that the defendant had left the house. The lady was apprised of the contents of the summons. Therefore, on 2. 12. 1995 the petitioner was well aware of the proceedings. Trial Court again issued summons for 26. 4. 1996 by ordinary process as well as by registered A. D. post for 16. 4. 1996. The process server went to the premises and he sought to serve the defendant. She stated that the petitioner/defendant has gone out without telling her as to where he was going. She refused to receive the summons. The summons sent by registered. A. D. returned as "unclaimed. " The postman gave intimation to the inmates on 12. 1. 1996. On 13. 1. 1996 the postal cover was returned back by the postman with the endorsement unclaimed . On 27. 1. 1996 the process server gave a report stating he met one man in the premises and he stated that he was Mr. R. L. Suri (the defendant), he himself stated that he was not available. It is clear from this the defendant being present had reported to the process server that he was not available. On 27. 1. 1996 the process server gave a report stating he met one man in the premises and he stated that he was Mr. R. L. Suri (the defendant), he himself stated that he was not available. It is clear from this the defendant being present had reported to the process server that he was not available. Therefore, it is clear that the defendant was well aware of the contents of the summons but still he did not choose to appear. On 3. 5. 1996 endorsement is made by the postman in the "intimation delivered returned unclaimed". On 20. 8. 1996 on affidavit the process server has stated that he met one lady in the premises an after reading summons refused to accept the summons and Mr. R. L. Suri was not present himself. Therefore, the petitioner was fully aware of the proceedings even in August, 1996, when again the registered letter was sent to the petitioner the endorsement made by the postal Authorities on 7. 10. 1996 on A. D. Cover is "refused hence returned". The process server again sent his report on 3. 10. 1996 on ACA. The process server has meet the defendant personally and he refused to accept the summons. So is the copy of the summons were affixed on the premises. It could be seen that the petitioner was served with summons four times. ( 14 ) IN the application filed by the petitioner on 19. 5. 1997 the case of the petitioner is: "plaintiff filed the present suit for mandatory injunction and for recovery of mesne profit on 7. 9. 1995. Summons of the suit were sent from time to time by ordinary way as well as by registered post, but at last on the basis of refused reports defendant was proceeded ex-parte on 24. 12. 1996. In his application defendant has alleged that some one informed his wife on 11. 3. 1997 about the pendency of this suit in this Court which was fixed for 14. 3. 1997. Defendant inspected the file on 11. 3. 1997 itself and on next day i. e, 12. 3. 1997 he moved an application for supply of copy of the plaint which was taken up on 14. 3. 1997 the date already fixed in the case. 3. 1997. Defendant inspected the file on 11. 3. 1997 itself and on next day i. e, 12. 3. 1997 he moved an application for supply of copy of the plaint which was taken up on 14. 3. 1997 the date already fixed in the case. On that date copy of plaint and site plan was supplied to him but no application for setting aside ex-parte order was moved on that day. Thereafter case was fixed for 4. 6. 1997 for recording ex-parte evidence but in between defendant moved present application. Plaintiff contested this application and also alongwith his reply requested for initiating proceedings against defendant under Section 340, Criminal Procedure Code for prosecuting him for perjury on the ground that defendant has made false statement and allegations in his application against Ahlmad of this Court, process server, postman as well as plaintiff and his Counsel. Defendant filed rejoinder cum reply to the application under Section 340, Criminal Procedure Code. " ( 15 ) ACCORDING to the petitioner he moved an application on 12. 3. 1997 and the Court directed a copy of the plaint is to be given to the defendant. On 7. 4. 1997 the defendant moved an application under Order 9 Rule 7. That was given to the Clerk of Sh. Avtar Singh for filing the same in the Court. The application filed could not be traced in the Court. The defendant filed an application before copying agency civil on 20. 3. 1997 and file of this case was reported missing and hence file could not be sent to the copying agency on 16. 5. 1997. The application of the defendant under Order 9 Rule 7, Civil Procedure Code could not be traced out at all. Hence the defendant filed an application on 19. 5. 1997. According to the defendant the summons in the case was never served on him. Mr. H. K. Chaudhary, father of the respondent procured false report from the postman. Similarly, the Courts summons was also given to Mr. H. K. Chaudhary and he manoeuvred to get a false report. There are six cases pending in Hon ble Court in which the defendant and the plaintiff and his father Mr. H. K. Chaudhary are parties. The first application filed by the defendant on 7. 4. Similarly, the Courts summons was also given to Mr. H. K. Chaudhary and he manoeuvred to get a false report. There are six cases pending in Hon ble Court in which the defendant and the plaintiff and his father Mr. H. K. Chaudhary are parties. The first application filed by the defendant on 7. 4. 1997 deliberately lost by the staff of the Court at the instance of the plaintiff and therefore, the defendant has shown sufficient cause and order dated 24. 12. 1996 is liable to be set aside. ( 16 ) I have already noticed how steps were taken by the Court and the postal Authorities to effect service on the defendant. The learned Civil Judge has held that the defendant has not been able to establish that he filed an application in March, 1997 and referring to the facts of the case in the light of provision of Order 5 held that the defendant had been served and he had made false allegations against even officers of the Court which is for the purpose of this application. The learned Civil Judge has also noticed the plea of the respondent/plaintiff that the defendant should be prosecuted for prejery. The learned Civil Judge had himself awarded costs. Rightly the learned Civil Judge has observed: "though by dismissing the application of defendant under Order 9 Rule 7, Civil Procedure Code he cannot be taken to the previous stage of the case yet there is no bar for him to join future proceedings of this suit. Case is now fixed for evidence of plaintiff on next date and in case defendant choose to participate in future proceedings and wants to cross-examine witnesses of plaintiff then he shall have to pay the cost first. The right to cross-examination is given to defendant subject to pre-condition of deposit of cost by next date. Hence application of defendant under Order 9 Rule 7, Civil Procedure Code is dismissed with above observations. " ( 17 ) I do not find any error in the order passed by the learned Civil Judge. ( 18 ) THE learned Counsel for the respondent submitted the petitioner should be suitably dealt with for he has come forward with a false case and the cost imposed by the lower Court is not sufficient punishment for the act of the defendant. ( 18 ) THE learned Counsel for the respondent submitted the petitioner should be suitably dealt with for he has come forward with a false case and the cost imposed by the lower Court is not sufficient punishment for the act of the defendant. The learned Civil Judge has dealt with the defendant in a proper manner and I do not find any reason to interfere with the order passed by the lower Court. ( 19 ) ACCORDINGLY, revision petition is dismissed with costs. Revision Petition dismissed with costs.