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2013 DIGILAW 1057 (RAJ)

Dhoom Singh v. Ved Ram

2013-05-21

BELA M.TRIVEDI

body2013
JUDGMENT : Bela M. Trivedi, J. With the consent of the learned counsels for the parties, the appeal is decided finally at the admission stage. 2. The present appeal arises out of the judgment & order dated 11.09.2009 passed by the Additional District Judge (Fast Track) Tijara, Alwar (hereinafter referred to as "the trial Court") in Civil Misc. Application No. 66/08, whereby the trial Court has rejected the application of the appellant-defendant under Order 9, Rule 13 for setting aside the judgment & decree dated 14.11.2007 passed in the Civil Suit No. 75/07(106/2006). 3. It appears that the present respondents-plaintiffs had filed the suit against the appellant defendant seeking specific performance of the agreement dated 18.08.2004. According to respondents-plaintiffs, though the summons were duly served on the appellant-defendant, he did not appear in the suit, and therefore the Court had passed the order on 12.09.2006 for proceeding ex-parte against the defendant The trial Court, thereafter on the basis of the affidavits filed by the plaintiffs, decreed the suit ex-parte against the appellant-defendant as per the judgment & decree dated 14.11.2007. The appellant defendant, thereafter submitted an application under Order 9, Rule 13 of Civil Procedure Code, praying to set aside the said decree on the ground that the summons were never served to him and he came to know about the ex-parte decree only when the notice was issued by the executing Court under Order 21, Rule 34 of Civil Procedure Code. The trial Court dismissed the said application of the appellant-defendant vide the order dated 11.09.2009. Hence the present appeal has been filed. 4. It has been sought to be submitted by the learned counsel Dr. P.C. Jain for the appellant that the appellant was never served with the summons of the suit. Taking the Court to the alleged signature of the appellant-defendant appearing on the back side of the summons and to the admitted signatures of the appellant in the application under Order 9, Rule 13, the learned counsel submitted that both the signatures do not tally and the trial Court has wrongly come to the conclusion comparing the said signatures that the signature on the back side of the summons was that of the defendant only. He further submitted that the affidavit filed by the appellant before the trial Court in support of his application under Order 9, Rule 13 was not controverted by the respondents by filing a counter affidavit, and there was no reason for the Court not to believe the affidavit of the appellant. Lastly, he submitted that the trial Court ought to have granted one opportunity to the appellant to lead the evidence, if the said affidavit filed by the appellant was not to be taken into consideration. 5. However, the learned counsel Mr. R.K. Mathur Senior Counsel for the respondents vehemently submitted that though the appellant was duly served in the suit, he chose to remain absent through out the proceedings, and therefore the trial Court had no alternative but to decree the suit, relying upon the affidavits filed by the plaintiffs, which had remained unchallenged. Pressing into service, the provisions contained in Order 9, Rule 13, Mr. Mathur has submitted that since the summons were duly served, and since no other ground was made out by the appellant to set aside the decree, which was legally passed against the appellant, the trial Court has rightly dismissed the application of the appellant filed under Order 9, Rule 13, and this Court should not interfere with the said order. 6. In the instant case, it appears that the respondents-plaintiffs had filed the suit seeking specific performance of the agreement before the trial Court on 30.08.2006, on which date the Court had issued the summons to the appellant defendant, making it returnable on 05.09.2006. Since the said summons did not return duly served, the suit was adjourned to 07.09.2006. On that day also, the summons had not returned, and therefore the suit was adjourned for 12.09.2006. As transpiring from the order sheets, which are part of the record, it appears that on 12.09.2006, the Court passed the order to the effect that since the defendant or his Advocate was not present, though the summons were served, the matter shall be proceeded ex-parte against the defendant. It appears that thereafter the trial Court on the basis of the affidavits filed by the plaintiffs, decreed the suit as per the judgment & decree dated 14.11.2007. It appears that thereafter the trial Court on the basis of the affidavits filed by the plaintiffs, decreed the suit as per the judgment & decree dated 14.11.2007. From the bare reading of the said judgment and the order sheets, it clearly transpires that till 07.09.2006, the summons had not returned duly served and on 12.09.2006 the Court after observing that the summons were duly served, passed the order to proceed ex-parte against the appellant-defendant. It further appears that the Court without framing any issues and relying upon the affidavits filed by the respondents-plaintiffs decreed the suit in one paragraph without discussing any evidence and observing that there was no reason to disbelieve the said affidavits. As rightly submitted by the learned counsel Dr. P.C. Jain, even if it was believed that the summons were duly served on the appellant defendant the trial Court was expected to wait for a reasonable time before passing the order for proceeding ex-parte against the defendant on 12.09.2006. It appears that the trial Court had also not verified as to whether the summons were duly served or not on the defendant. Merely because some signature had appeared on the back side of the summons, it could not be believed that it was the signature of the defendant only. 7. Apart from that, when the application for setting aside the said judgment & decree was filed by the appellant-defendant under Order 9, Rule 13, the trial Court without affording sufficient opportunity to the appellant-defendant to lead evidence, took upon itself the burden of comparing the alleged signature of the appellant-defendant on the summons with the other signatures appearing on the application filed by the appellant and came to the conclusion that the signature on the summons was that of the appellant only. When the appellant-defendant had filed the affidavit in support of his application to the effect that he was not duly served with the summons, which affidavit had remained un-controverted, at the instance of the respondents plaintiffs, the trial Court ought to have granted the opportunity to the appellant to prove contents of his application that the summons did not bear his signature. 8. 8. Having regard to the facts and circumstances of the case, it appears that the trial Court had proceeded in the suit with unwarranted haste, by proceedings ex-parte against the appellant, and had also not granted sufficient opportunity to the appellant to lead the evidence in the application under Order 9, Rule 13. Hence without going into the merits of the suit, the order dated 11.09.2009 passed by the trial Court in the application filed under Order 9 Rule 13, deserves to be set aside in order to give one more opportunity to the appellant-defendant to lead the evidence in support of his application, in the interest of Justice. 9. In that view of the matter, the order dated 11.09.2009 passed by the trial Court in the application being No. 66/08 filed under Order 9, Rule 13 is set-aside. The said application is restored on file of the trial Court and the parties are directed to remain present before the trial Court on 10.07.2013. It is further directed that till the pendency of the said application, the respondents-plaintiffs shall not proceed further with the execution of the decree in question. The trial Court is directed to decide the application as expeditiously as possible and the parties are also directed to cooperate with the trial Court in early disposal of the application. The appeal stands allowed accordingly. The record of this case is directed to be sent back immediately.