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2011 DIGILAW 1542 (CAL)

Narayan Banik v. Mahabir Prosad Todi

2011-12-22

J.N.PATEL, SAMBUDDHA CHAKRABARTI

body2011
Judgment : The Court : On a money suit being filed by the respondent herein for a decree of Rs.33,10,044.76 and other reliefs a learned single Judge of this Court by a judgment and order dated 12th April, 2007 decreed the suit in favour of the plaintiff directing the defendant thereto, i.e. the appellant herein, to pay to the plaintiff the sum of Rs.33,10,000/- only with interest thereon at the rate of 10% per annum from 21st December, 2000, being the date of institution of the suit till the date of the judgment. This suit was decreed ex parte. The defendant did not appear. The case of the defendant was that it could not appear because the summons was not ever served upon him. More than two years after the suit was decreed the defendant came up with an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the exparte decree. The specific case of the defendant is that the addresses mentioned in the cause title of the plaint of the suit were 133/3A, Acharya Prafulla Chandra Road, Kolkata – 700 006 and also 247/1/H, Acharya Prafulla Chandra Road, Kolkata – 700 006. The defendant’s specific case in the application was that at no point of time he resided at the premises no. 247/1/H, Acharya Prafulla Chandra Road, Kolkata – 700 006 and that premises no. 133/3A, Acharya Prafulla Chandra Road, Kolkata – 700 006 was his business address wherefrom he used to carry on his business. The second one was a tenanted premises and the tenancy was in the name of his friend. Suffering losses he had stopped the business. His specific case is that he resides at premises no. 246/C, Acharya Prafulla Chandra Road, Kolkata – 700 006. As a proof of residence he has annexed a copy of the ration card which shows his address at no. 246/C, Acharya Prafulla Chandra Road, Kolkata – 700 006. The further case made out by the petitioner in the said application is that he had only recently come to know that a suit had been filed by the respondent herein and that an ex parte decree had been passed in the suit in favour of the plaintiff. He had also come to know that the plaintiff has put that decree into execution. He had also come to know that the plaintiff has put that decree into execution. The defendant says that the writ of summons in the said suit was never received by him nor was it ever served upon him as the address of the defendant was not properly mentioned in the plaint. As such, it was not possible for him to defend the suit by filing a written statement. The further case of the defendant was that he had cleared all dues as claimed by the plaintiff and that nothing was due and payable by him. The date of knowledge about the suit and the ex parte decree, the petitioner asserts, was on June 20, 2009 after the order of attachment was passed. The rest is the usual story of the activities that the petitioner says he started after his alleged date of knowledge. Therefore, the defendant, inter alia, prayed for setting aside of the ex parte decree passed by the learned Single Judge of this Court after condonation of delay of 384 days in filing the said application. This application was very strongly opposed by the plaintiff in the Court below. A detailed affidavit-in-opposition was affirmed by the plaintiff wherein the allegations made by the defendant have all been denied and there is also a list of events mentioned therein in support of the plaintiff’s assertion that the summons was sought to be served upon the defendant. The postal envelope had come back with the endorsement “refused”. The plaintiff further has mentioned that on March 14, 2007 the learned Single Judge had directed the Registrar, Original Side, that a copy of the summons should be affixed on the outer door or some other conspicuous part of the house of the residence of the defendant where the defendant ordinarily resided or carried on business or personally worked for gain. Pursuant to the said order the bailiff went on March 26, 2007, affixed the summons and the plaint on the walls of both the premises as mentioned in the cause title of the plaint. In spite of it the defendant did not appear. On April 12, 2007 the said suit appeared as an un-defendant suit and was decreed by the learned Single Judge. In spite of it the defendant did not appear. On April 12, 2007 the said suit appeared as an un-defendant suit and was decreed by the learned Single Judge. The decree was put to execution in March 2009 and another Single Judge of this Court was pleased to pass an appropriate order in respect of these premises and a learned advocate of this Court was appointed Receiver to take possession of those premises. In April 2009 the Receiver went to those premises and affixed the notice of possession on the wall of these premises. In April 2009 n warrant of arrest was issued against the judgment debtor on the basis of the affidavit sworn by the son of the plaintiff wherein it was specifically mentioned that when the Receiver had visited the premises no. 247/1/H, Acharya Prafulla Chandra Road, Kolkata – 700 006 the defendant was personally present. It has also been specifically mentioned in the said affidavit that before any steps could be taken in terms of the order of the learned Single Judge the wife of the defendant namely, Smt. Kabita Bonik intervened and took out two notices of motion praying for an order for intervention in the execution case as a party respondent and also for an order releasing the premises nos. 131/C, Acharya Prafulla Chandra Road, Kolkata – 700 006 and 247/1/H, Acharya Prafulla Chandra Road, Kolkata – 700 006 from being sold as those are her self acquired properties and shortly thereafter the judgment debtor had came up with an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside of the ex parte decree. The other allegations in the application of the defendant were also denied by the plaintiff. To this opposition the defendant had used an affidavit in reply largely reiterating his earlier stand and giving a little more detailed account of facts in connection with the money suit or the execution case filed by the plaintiff. This application came up for hearing before the learned Single Judge and by a judgment and order dated February 22, 2010 the learned Single Judge after hearing the learned advocates of both the sides and after perusing the records had dismissed the application on merits. This application came up for hearing before the learned Single Judge and by a judgment and order dated February 22, 2010 the learned Single Judge after hearing the learned advocates of both the sides and after perusing the records had dismissed the application on merits. It has also been observed therein that His Lordship had been fully convinced that the applicant i.e. appellant before us, has not been honest at all in approaching this Court for obtaining the order prayed for by him in this application. The learned Single Judge made a rather turgid observation when he writes “If I pass any order as prayed for, I will really be aiding and abetting a dishonest judgment debtor/applicant, who was merely watching the suit proceeding sitting on the fence to delay the execution and then started these proceedings to upset the decree validly obtained by the plaintiff on some pretext or rather for this pretext”. The application was thus dismissed with costs of Rs. 5000/- which the learned Single Judge said should have been much more. This appeal is against the said judgment and order of the learned Single Judge. Mr. Jayanta Banerjee, learned advocate appearing for the appellant has contended that no writ of summons was ever served upon the appellant as the appellant was not residing at premises no. 247/1/H, Acharya Prafulla Chandra Road, Kolkata. Although his wife resides at that premises he did not get any information as the relation between the husband and the wife was strained. The appellant’s further contention is that at one point of time he used to carry on business at 133/3A, Acharya Prafulla Chandra Road but he had stopped carrying on the business from the said premises and as such even if any writ of summons was served at that premises he never received any such copy or came to know of the filing of the suit as he was never aware of the same. According to the appellant his permanent residence always was and still is at 246C, Acharya Prafulla Chandra Road, Kolkata – 6 which will be evident from the ration card issued in his favour on August 30, 1985. According to the appellant his permanent residence always was and still is at 246C, Acharya Prafulla Chandra Road, Kolkata – 6 which will be evident from the ration card issued in his favour on August 30, 1985. The appellant further contends that his connection with his business address at 133/3A, Acharya Prafulla Chandra Road got severed from January 1, 1999 which will be evident from the relevant letter of the appellant addressing the Commercial Tax Officer, Maniktala Charge, Salt Lake. The appellant states that he has not changed address in the Voter Card but the address mentioned in the ration card shows that presently his only address is 246C, and this was prior to November 16, 1998, i.e., the date of the agreement for mutual divorce with his wife. The appellant made further grievance about the fact that he intended to cross-examine the Process Server and the Sheriff’s Assistant but the same was turned down by the learned Trial Judge who has merely decided the case on the basis of the affidavit-in-opposition sworn by the respondent to the appellant’s application under Order 9 Rule 13 of the Code of Civil Procedure. The appellant further argued that this opportunity to allow him to cross-examine the Process Server was very important and the report that they had affixed a copy of the summons on the outer door of both the premises should have been allowed to be tested because if it is proved that they did not in fact visit those addresses at all and prepared the report sitting in their offices the entire case will take a very different turn. The appellant has also relied on a copy of the agreement styled as agreement for mutual divorce with his wife and submitted that it shows that from November 16, 1998 he had no relation with his wife, Smt. Kabita Banik. The appellant further contended that it was definitely within the knowledge of the respondent that he was not residing at the addresses mentioned in the plaint as the notices of demand had returned from both the addresses which has been admitted in paragraph 14 of the plaint. The appellant further contended that it was definitely within the knowledge of the respondent that he was not residing at the addresses mentioned in the plaint as the notices of demand had returned from both the addresses which has been admitted in paragraph 14 of the plaint. The appellant has also taken a point that the provisions of Order 5 Rule 2 Sub- Rule 1 of the Code of Civil Procedure has been violated as no order for affixation of a copy of the summons in some conspicuous place in the Court was passed by the learned Single Judge. Moreover, the learned Trial Judge never recorded his opinion that the appellant herein was avoiding the summons or that it could be served in the ordinary way. The envelope which has come back with the postal endorsement ‘refused’ must not be taken seriously as the address mentioned on the envelope, i.e., 247/1/H, Acharya Prafulla Chandra Road, belonged to the wife of the appellant and the appellant has no access to the said house. If the appellant’s wife had refused to receive the said envelope that cannot be construed to be a refusal by the appellant as he has no contact with his wife since 1998. The appellant has very emphatically submitted that before June 20, 2009 he had no knowledge about the filing of the concerned suit against him. The further contention of the appellant is that he had paid the entire amount to the plaintiff by cheque and the plaintiff had filed the suit on the basis of a false claim. He asserts that after taking an inspection of the records he has come to learn that some of the documents relied on by the respondent herein in the Trial Court contained his forged signatures and as the appellant did not get any opportunity to contest the suit he could not establish the same in Court and the decree has been obtained by the respondent by practicing fraud upon the Court and as such the ex parte order is liable to be set aside and the appeal be allowed. The respondent strongly contested the appeal and described the submissions made by the appellant as self-contradictory. Other than a single piece of document, i.e., the ration card, there is no other document in support of his contention that the appellant has been residing at 246C, Acharya Prafulla Chandra Road. The respondent strongly contested the appeal and described the submissions made by the appellant as self-contradictory. Other than a single piece of document, i.e., the ration card, there is no other document in support of his contention that the appellant has been residing at 246C, Acharya Prafulla Chandra Road. The respondent has taken serious exception to the claim of the appellant that at no point of time he resided at 247/1/H, Acharya Prafulla Chandra Road which is demolished from the purported agreement for mutual divorce where that address has been mentioned as the residence of the appellant. The next contention of the respondent was that the appellant herein was keeping a close watch on the proceeding of the case and immediately after the warrant of arrest was issued the wife of the appellant intervened to protect her interest followed by the application under Order 9 Rule 13 of the Code of Civil Procedure by the appellant. It is the case of the respondent that no reliance is to be placed on the date of the mutual divorce by agreement as on this document one of the witnesses has used his address as ‘Kol’ which obviously is the abbreviated form of ‘Kolkata’. This was done in the year 1998 when the document was allegedly executed but the name of the city was changed three years later in the year 2001.The respondent submits that this document was subsequently manufactured to support the story of a strained relationship between the appellant and his wife. The respondent has also further submitted that the appellant has not disclosed the particulars as to how he derived knowledge about the decree passed in the suit and has made only a very vague submission stating that he had knowledge for the first time on June 20, 2009 from a relative and the subsequent disclosure of the identity of the said relative as Jyotsna Banik in the affidavit-in-reply as the alleged aunt of the appellant was a feeble effort to cover up the lacuna. The respondent has very strongly relied on the report of the Receiver when he visited the premises at 247/1/H, Acharya Prafulla Chandra Road and found the son of the appellant Sujit Banik who had described his father as a tenant at the said premises. The respondent has very strongly relied on the report of the Receiver when he visited the premises at 247/1/H, Acharya Prafulla Chandra Road and found the son of the appellant Sujit Banik who had described his father as a tenant at the said premises. The respondent has further submitted that the service of writ of summons has been duly proved by the affidavit by the Serving Officer as per the relevant provisions of the Original Side Rules. The respondent has further relied on the case of Ramesh Chandra –Vs.- N. T. Company, reported in 44 CWN 999 and Sushil Kumar Chakravarthy –Vs.-Ganesh Chandra Mitra, reported in AIR 1958 Cal 251 for a proposition that the postal endorsement ‘refused’ raises a presumption of good service under Section 114 of the Evidence Act as also under Section 27 of the General Clauses Act. The respondent, therefore, prayed for the dismissal of the appeal. We have heard the learned Advocates for the parties and perused the records. We have also called for the records from the Court of the learned Trial Judge relating to the service of summons and the orders passed in the suit. It appears from the affidavit, affirmed on July 17, 2006, of Shri Amar Kumar Sengupta, one of the Assistants of the Sheriff’s office that on January 17, 2001 he forwarded a duplicate copy of the writ of summons with a copy of the plaint by registered post with acknowledgement card addressed to the defendant at 247/1/H, Acharya Prafulla Chandra Road and that an undelivered packet was received by his office with the endorsement ‘refused’. On February 26, 2007 the learned Trial Judge, inter alia, directed the Registrar, Original Side to furnish a report as to how the service of the writ of summons was effected upon the defendant. The learned Trial Judge further directed to annex a copy of the report of the Sheriff, if such report was in existence. It appears that pursuant to the said order the Registrar, Original Side had submitted a report, dated March 6, 2007, wherein it was recorded that he had called for a report from the Assistant Master and details of the mode of service was called for from the Deputy Sheriff and the Deputy Sheriff in turn had submitted a report dated March 5, 2007. The said report of the Deputy Sheriff as quoted in the report of the Registrar, Original Side shows that the original writ of summons along with two duplicate copies including the plaints was lodged by the plaintiff’ Section Advocate. One duplicate copy was sent to the personal address of the defendant on 17th January, 2001 and the undelivered envelope was returned from the General Post Office, Kolkata with the postal endorsement ‘refused’. Another copy could not be served upon the defendant as the plaintiff’s advocate did not provide any identifier as to the identity of the defendant as per the report of the concerned bailiff. This was followed by an order dated March 14, 2007 whereby the learned Trial Judge had, inter alia, directed to effect a personal service upon the defendant once again. It was also clarified in the said order that if the defendant refused to accept the personal service of the writ of summons or if the person concerned who is supposed to serve the writ of summons after due and reasonable diligence could not find the defendant and if there was no other person empowered to accept the service of the summons on behalf of the defendant nor was there any person on whom service could be made a copy of the summons should be affixed on the outer door or some other conspicuous part of the house or the residence of the defendant where the defendant originally resided or carried on business or personally worked for gain and should return the original to the Sheriff’s office. The learned Trial Judge has also specifically directed that such service was to be effected within two weeks from the date of the communication of the order. The Deputy Sheriff of Calcutta had submitted a service report wherein he mentioned that from the office record it appeared that pursuant to the order of the learned Trial Judge passed on March 14, 2007 Shri Panchu Gopal Sen, one of the Serving Bailiffs, went to the premises no. 133/3A, Acharya Prafulla Chandra Road on March 26, 2007 at about 2 p.m. to serve the writ of summons upon the defendant. On enquiry he was told that by one gentleman who refused to disclose his identity that the defendant was not there and also refused to accept the service of the writ of summons. Immediately Mr. 133/3A, Acharya Prafulla Chandra Road on March 26, 2007 at about 2 p.m. to serve the writ of summons upon the defendant. On enquiry he was told that by one gentleman who refused to disclose his identity that the defendant was not there and also refused to accept the service of the writ of summons. Immediately Mr. Sen in presence of the identifier on behalf of the plaintiff stuck one copy of the writ of summons along with the copies of the plaint and a copy of the dictated order at the outer door of the said premises. Thereafter, at about 2:45 p.m. on the same day Mr. Sen along with the said identifier went to the residence of the defendant at 247/1/H, Acharya Prafull Chandra Road where the said officer was informed by “one lady who was reluctant to divulge her name and identity” that the defendant did not live there and also refused to accept the service of the writ of summons on his behalf. A copy of the writ of summons with a copy of the plaint and a copy of the dictated order was affixed at the outer door of the said premises. On April 11, 2007 the concerned department of the Court issued a certificate of nonappearance of the defendant in the suit till that date. On the very next day this suit appeared as an undefended suit before the learned Trial Judge and the same was decreed. The learned Trial Judge while dismissing the appellant’s application under Order 9 Rule 13 of the Code of Civil Procedure had observed that since His Lordship had the advantage of dealing with the suit His Lordship was fully satisfied that the plaintiff had taken all the steps necessary to ensure that the writ of summons was duly served upon the defendant. The learned Trial Judge has relied on the statements made by the plaintiff in his affidavit-in-opposition to the defendant’s application as to how the writ of summons was served and he relied upon the specific statements to that effect by the plaintiff in his affidavit. A report from the Registrar, Original Side was called for regarding the service of the writ of summons upon the defendant. A report from the Registrar, Original Side was called for regarding the service of the writ of summons upon the defendant. Pursuant to the order dated March 14, 2007 passed by the learned Trial Judge service was duly effected upon the defendant once again and the learned Trial Judge recorded that he was fully satisfied that the service of the writ of summons was effected or rather the defendant was duly served with the writ of summons and it was only after such satisfaction that the learned Trial Judge proceeded to consider the suit on merits and after considering evidence of the plaintiff the judgment and decree were pronounced in favour of the plaintiff. While considering the defendant’s case as made out in the application the learned Trial Judge was fully convinced that the approach of the appellant herein had been thoroughly dishonest in making out a case for setting aside the decree in question and he had merely made certain halfhearted, untrue statements and beyond that has said nothing from which the Court below could convince itself that the defendant was not aware of the institution of the suit and that the writ of summons was not duly served upon him or he had no knowledge of the pendency of the suit. Such finding of the learned Trial Judge has been sought to be assailed by the appellant in this appeal. It appears from the records of the Trial Court that there was service of the writ of summons at the address mentioned in the plaint. The plaintiff’s case is that he never resided at premises no. 247/1/H, Acharya Prafulla Chandra Road which is the residence of his wife. In support thereof he has relied on a purported agreement for mutual divorce dated November 16, 1998 which was marked as Exhibit 7 in the Court below. First, such agreement for mutual divorce has no validity in the eye of law. Any marriage may most certainly be dissolved by a competent court of law but not by a mutual agreement between the parties without going to Court. That apart this agreement also shows that 247/1/H, Acharya Prafulla Chandra Road was the residence of the defendant. This clearly disproves the repeated and overstressed claim of the appellant that at no point of time he resided in the said premises. That apart this agreement also shows that 247/1/H, Acharya Prafulla Chandra Road was the residence of the defendant. This clearly disproves the repeated and overstressed claim of the appellant that at no point of time he resided in the said premises. At the time of hearing the learned Advocate for the appellant had sought to improve upon the case by submitting that after this mutual divorce the husband and wife were living separately and the premises 247/1/H, Acharya Prafulla Chandra Road which is the exclusive property of his wife Smt. Kabita Banik ceased to be the residence of the husband. Such submission of the appellant in any case belies the forceful assertion that at no point of time he resided at the said address. The learned Advocate for the appellant tried to cover it up by saying that before their purported mutual divorce the appellant used to reside both at the premises no. 246-C, Acharya Prafulla Chandra Road as well as in 247/1/H, Acharya Prafulla Chandra Road. The first one was his ancestral house and the second one was the residence of the wife. That is why his ration card was issued at the address of 246/C, Acharya Prafulla Chandra Road, Kolkata. This at least showed that at some point of time he had resided at the premises no. 247/1/H, Acharya Prafulla Chandra Road, Kolkata. The learned Advocate for the respondent had categorically submitted that his Voter Card still contains his residential address at 247/1/H, Acharya Prafulla Chandra Road. In the written notes of submission filed before us the appellant sought to cover it up by submitting that his Voter Card has not yet been changed. This once again clearly suggests that the said address was not the residential address of his wife alone. He definitely resided in the said house at some point of time unless of course he still has connection with his wife. There are strong and prima facie reasons to harbour such suspicion from the conduct of the appellant himself. If the appellant and his wife had really wanted to dissolve their marriage they could most certainly file a joint petition in a competent court of law and obtain a decree for divorce on mutual consent. There are strong and prima facie reasons to harbour such suspicion from the conduct of the appellant himself. If the appellant and his wife had really wanted to dissolve their marriage they could most certainly file a joint petition in a competent court of law and obtain a decree for divorce on mutual consent. Moreover, we consider the suspicion of the respondent expressed at the time of hearing of the appeal that the said agreement was clearly a manufactured one to be quite justified from the fact that one Smt. Sabita Pal, who was one of the witnesses to the said purported agreement for mutual divorce, has written below his name ‘Kol-28’ meaning ‘Kolkata – 28’. The respondent is certainly within his rights to raise the question that since the name of the city was changed from Calcutta to Kolkata only in the year 2001 this witness had no reason to write Kolkata – 28 in the year 1998 anticipating a future change. It is true and it is quite possible that even after the change of the name of the city from Calcutta to Kolkata the practice of describing one’s own city by the old name with which one is accustomed continued for quite some time or with some it may still continue now. But nobody could anticipate a future change and this use of ‘Kol’ in the year 1998 raises reasonable doubt about the genuineness of the document itself. It further appears that in the application under Order 9 Rule 13 of the Code of Civil Procedure there are major factual anomalies and many unexplained things which cannot be ignored while disposing of an application for setting aside an ex parte decree. The learned Trial Judge has described this application as the ‘sketchiest application’ he had ever come across whereby an applicant has approached this Court with a prayer to set aside an ex parte decree. It is only expected that the applicant in such applications should mention how and in what circumstances he for the first time came to know of the suit in which an ex parte decree against him has been passed. The appellant’s statements to this effect is rather unfortunate. In paragraph 9 of his application he merely states that he came to know of this suit ‘from his relatives’ after an order of attachment was passed only on June 20, 2009. The appellant’s statements to this effect is rather unfortunate. In paragraph 9 of his application he merely states that he came to know of this suit ‘from his relatives’ after an order of attachment was passed only on June 20, 2009. He asserts that thereafter he contacted his learned Advocate on June 21, 2009 and the learned Advocate after making papers ready the appellant had affirmed the said application on June 22, 2009. In the first place he does not disclose the names of these relatives. In the affidavit-in-reply he quite feebly tried to fill up the lacunae by mentioning that on June 20, 2009 he was informed of the decree by one of his relatives namely Smt. Jyotsna Banik, his aunt. Thus, the initial stand that he had heard about the suit and the subsequent ex parte decree ‘from his relatives’ was substituted by only one relative, i.e., his aunt. How this aunt came to know of this or what was the source of this aunt’s knowledge about the institution of this suit and the ex parte decree or the address of the aunt has no where been explained or mentioned. The effort on the part of the appellant at the hearing of this appeal that the plaintiff had circulated in the locality about the ex parte decree from which the aunt had come to know of it is too a vague statement and too weak an effort to lend credibility to an otherwise unbelievable stand. That apart if we look at the sequences of events it clearly suggests that there is something very seriously wrong in the submissions of the appellant. If we accept that the appellant had the knowledge of the suit and the subsequent decree for the first time on June 20, 2009 and he rushed to his learned Advocate on June 21, 2009 it just cannot be that that he could file this application on the very next day, i.e., on June 22, 2009. In the affidavit-in-reply the appellant has mentioned that the learned Advocate prepared the papers after he met him on June 21, 2009 and this application was affirmed on the very next day. There is no mention that in such a short period the appellant or his learned Advocate had taken inspection of the records of the suit. In the affidavit-in-reply the appellant has mentioned that the learned Advocate prepared the papers after he met him on June 21, 2009 and this application was affirmed on the very next day. There is no mention that in such a short period the appellant or his learned Advocate had taken inspection of the records of the suit. In fact, the learned Advocate for the appellant has annexed to his written notes of submission a copy of the request made to the Registrar, Original Side for an inspection of the entire records of the suit, but that was only on April 9, 2010 and it appears from the endorsement made on such notice that the actual inspection took place on May 6, 2010. One wonders how in spite of this the appellant could mention in his application about the reliefs prayed for by the respondent in the suit as well as the addresses of the defendant as given by the respondent in the plaint. Even more surprisingly, these paragraphs in the application under Order 9 Rule 13 of the Code of Civil Procedure have been affirmed by the appellant as true to his knowledge and not as the information derived from the records of the case. One has good reasons to suspect that this information was within the knowledge of the appellant himself and did not come to his knowledge the way he would like the Court to believe. The sequence of events raises many eyebrows about the bona fide of the conduct of the appellant. On June 16, 2009 his wife Smt. Kabita Banik had taken out two notices of motion as an intervenor stating that the premises no. 247/1/H, Acharya Prafulla Chandra Road was her exclusive property and, therefore, could not be attached in execution of the decree against the appellant herein. But she never mentioned that she and her husband had been living separately or has no connection between them and it is very surprising that within a week’s time the appellant who could not be contacted or traced out for years suddenly appeared in the scene with the information about the institution of the suit and the decree passed therein, rushed to the Court with an application under Order 9 Rule 13 of the Code of Civil Procedure and that too with such averments which are not only gleefully vague but have also no podium to stand. The conduct of the appellant as well as his averments made in support of his case does not lend credence to the story he has sought to make out and betray his desperate effort to get the ex parte decree set aside by resorting to unsustainable pleas. The contention of the appellant that he has been denied of opportunity to cross-examine the Process Server about the veracity of the statements of the respondent about the service of the writ of summons at the addresses mentioned in the plaint has absolutely no force of law. The appellant has stressed that if it could be proved by cross-examination that they did not visit the addresses at all and prepared a report sitting in their offices the entire case might take a different turn. Such contention, no matter how emphatically put, is absolutely baseless and on the contrary self-destructive. In case it could be proved that they had actually visited those addresses then perhaps the appellant would not have had any thing to show. This was the only implication of such submission which clearly suggests that he had connection with these addresses. Moreover, the question of examining any Serving Officer would have arisen only if the defendant had been residing at 247/1/H, Acharya Prafulla Chandra Road, but he was not served with summons at that address. If the contention of the appellant be such that he had no connection with that house then no matter whether any writ of summons was at all served at that residence this would have been an improper service at a place which was not the address of the defendant. This is all the more significant that the address given by the plaintiff was not just a simple mistaken address of any third party where the defendant was not available. This was at least the address of the defendant’s wife which the plaintiff was not expected or supposed to know unless the defendant himself had given this address to the plaintiff. On the contrary, the allegation of the respondent seems to have been quite well founded that the appellant and his wife were keeping a close watch of the situation and made their respective appearances immediately after the order of warrant of arrest was issued by the Court executing the decree. The respondent has relied on reports filed by the Receiver in connection with the execution case. The respondent has relied on reports filed by the Receiver in connection with the execution case. Even if we do not have to go to the post-decree documents the documents relating to the suit before the exparte decree was passed are clear and categorical enough to justify the learned Trial Judge’s observation that the appellant was sitting on the fence and watching the proceedings. The appellant’s contention that he had already made full payment to the respondent cannot be gone into in a proceeding under Order 9 Rule 13 of the Code of Civil Procedure. The proceeding under Order 9 Rule 13 of the Code of Civil Procedure is not concerned with the merits of the suit but is concerned only with two things, viz. the summons were not duly served on the defendant or that he was prevented for any sufficient cause from appearing when the suit was called on for hearing. It must be held that the appellant has not been able to satisfy either of them to get an order setting aside an ex parte decree. Mr. Banerjee has relied on the case of R.M.T.S.S. Dhanasekaran –Vs.- State Bank of India Dindigul, reported in AIR 1977 Mad. 252 and the case of Suru Syamalamba –Vs.-Kinthali Polisetti & Anr., reported in AIR 1979 AP 81 . The two Single Bench judgments relied by the appellant does not really help him. The facts of these two cases differ materially from the those in the case at hand. In the Madras case the Court had come to a finding that the summons had been served at an address where the defendant was not residing and in the judgment delivered by the Andhra Pradesh High Court the Court rejected the request to pass over the hearing and pass an ex parte decree as the learned Advocate was late in attending the Court and the suit was decreed ex parte. The Andhra Pradesh High Court held that this constituted sufficient cause for invoking a proceeding under Order 9 Rule 13 of the Code of Civil Procedure as the defendant was prevented by sufficient cause for appearing when the suit was called on for hearing. Obviously this has no connection with the facts of the present case. The Andhra Pradesh High Court held that this constituted sufficient cause for invoking a proceeding under Order 9 Rule 13 of the Code of Civil Procedure as the defendant was prevented by sufficient cause for appearing when the suit was called on for hearing. Obviously this has no connection with the facts of the present case. Here no prayer for adjournment was made on behalf of the defendant that the judgment delivered by the Andhra Pradesh High Court could be relied on nor could the appellant satisfy the Court that the summons was served at a wrong address so that he can gainfully rely on the judgment of the Madras High Court. On the contrary we have found that the case as made out by the appellant for setting aside the ex parte decree is not a believable one and in trying to make out such a case has merely come up with certain incorrect and frivolous statements, one contradicting the other and the truth of one statement being belied by the other statements. The conduct of the defendant has not been an honest one. He has failed to come with clean hands, not to speak of clean heart. We find no fault with the learned Trial Judge in dismissing his application. His application under Order 9 Rule 13 of the Code of Civil Procedure was very ambitious. His appeal from its dismissal is rather adventurous. His application before the learned Trial Judge had no merits. His appeal has equally no merits. His appeal stands dismissed. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (SAMBUDDHA CHAKRABARTI, J.) I agree. (J. N. PATEL, CJ.)