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Rajasthan High Court · body

2011 DIGILAW 2049 (RAJ)

Ramjilal v. Natholi Ram Saini

2011-09-22

BELA M.TRIVEDI

body2011
JUDGMENT 1. - The present petition has been filed by the petitioner (original plaintiff) under Article 227 of the Constitution of India challenging the order dated 6.10.2009 passed by the Additional Civil Judge (Jr. Division) No.2, Alwar (here-in-after referred to as the 'trial court'), whereby the application under Order 9, Rule 13 of CPC filed by the respondent no.1 (original defendant) has been allowed and the judgment and ex-parte decree dated 18.11.2008 passed in Civil Suit No. 34/18/2008 has been set-aside. 2. The short facts giving rise to the present petition are that the petitioner (original plaintiff) had filed a suit against the respondent no.1 (original defendant) seeking possession of the disputed premises in the Court of Civil Judge (Jr. Division) No.2, Alwar. According to the petitioner-plaintiff, though the defendant was duly served, he did not choose to appear before the said court and therefore, an ex-parte decree came to be passed against the defendant on 18.11.2008. The respondent-defendant thereafter moved an application under Order 9, Rule 13 seeking setting aside of the said ex-parte decree. The trial court, after hearing the learned counsel for the parties, passed the order dated 6.10.2009 allowing the said application under Order 9, Rule 13 and set-aside the ex-parte decree dated 18.11.2008 passed earlier in the suit after awarding cost of Rs. 1000/- to the petitioner. Being aggrieved by the said order, the petitioner-plaintiff has filed the present petition. During the course of the pendency of the present petition, the original petitioner has expired and his heirs have been brought on record. 3. It has been submitted by the learned counsel for the petitioners that the respondent, who was the defendant in the suit, was duly served inasmuch as the son of the respondent having refused to accept the summons issued by the court, the process server had affixed the said summons on the residential premises of the defendant, and the report was also submitted by the process server to the said effect before the concerned court. According to him, the defendant having failed to appear before the court, though duly served, the court had proceeded ex-parte against the defendant and after taking into consideration the evidence laid by the original plaintiff, the ex-parte decree was passed. According to him, the defendant having failed to appear before the court, though duly served, the court had proceeded ex-parte against the defendant and after taking into consideration the evidence laid by the original plaintiff, the ex-parte decree was passed. He also submitted that the application for setting aside the ex-parte decree was also not presented within the prescribed time limit and even otherwise there was no sufficient cause to set-aside the said ex-parte decree. 4. However, the learned counsel for the respondent-defendant, placing reliance on the provisions contained under Order 5, more particularly Rule 6 and 17 of Order 5. CPC, submitted that there was no proper service effected on the defendant, as contemplated in the said Order and the court could not have proceeded ex-parte. According to him, the trial court, after considering the facts and circumstances of the case and the record of the suit, had come to the conclusion that there was no proper service effected on the defendant and, therefore, set-aside the ex-parte decree passed against the defendant. 5. Having regard to the submissions made by the learned counsel for the parties and to the orders passed by the trial court, it transpires that the suit filed by the original plaintiff against the present respondent (defendant) had proceeded ex-parte as the process server had reported to the effect that the son of the defendant having refused to accept the summons, the summons was affixed on the residential premises of the defendant, and the same was treated as sufficient service of summons to the defendant. At this juncture, it is required to be noted that Order 5. Rule 17 prescribes the procedure for service of summons, when the defendant refused to accept the service or could not be found. In the instant case, it appears that it was the son of the defendant and not the defendant himself, who had refused to accept the service of summons. It also transpires from the impugned order passed by the trial court that the process server had not stated the dates, on which he had gone to serve the defendant for effecting the service of summons. It also transpires from the impugned order passed by the trial court that the process server had not stated the dates, on which he had gone to serve the defendant for effecting the service of summons. Under the circumstances, it does not transpire that the process server after using all due and reasonable diligence, had submitted the report before the court that the defendant was not found or that there was no likelihood of his being found at the residence and, therefore, the summons was affixed on the residential premises of the defendant. When the respondent-defendant had come out with the case that he was not duly served with the summons and when the trial court has also accepted the said case of the defendant after going through the record of the suit. The said finding being finding of fact recorded by the trial court, this Court exercising limited jurisdiction under Article 227 of the Constitution, is not inclined to interfere with the said finding. Even otherwise, there being no illegality or infirmity in the said order passed by the trial court, the present petition deserves to be dismissed. 6. However, after considering the facts and circumstances of the case, the cost awarded by the trial court to the petitioner for setting-aside the ex-parte decree is increased from Rs. 1000/- to Rs. 2500/-. The trial court is directed to decide the suit as expeditiously as possible and preferably within six months.In view of the above, the petition is dismissed.Petition dismissed. *******