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2013 DIGILAW 1618 (RAJ)

Mohan Singh Bairwa v. Roop Chand Rahariya

2013-09-16

BELA M.TRIVEDI

body2013
JUDGMENT 1. - With the consent of the learned counsels for the parties, the appeal is heard finally at the admission stage. 2. The present appeal has been filed by the appellant-defendant under Order 43, challenging the order dated 05.09.2011 passed by the Additional District Judge No. 3, Jaipur (hereinafter referred to as "the trial court") in Civil Misc. Case No. 67/2010, whereby the trial court has dismissed the application of the appellant-defendant filed under Order 9, Rule 13 of CPC, for setting aside the ex-parte decree dated 25.03.2010 passed in Civil Suit No. 148/2009. 3. In the instant case, it appears that the respondent-plaintiff had filed the suit for specific performance of the agreement allegedly executed by the appellant-defendant on 12.08.2008, and allegedly amended thereafter from time to time. The said suit was proceeded ex-parte against the appellant-defendant under the guise that the appellant had failed to appear though duly served. The trial court ultimately had decreed the suit ex-parte on 25.03.2010 granting the decree of specific performance of the agreements in question in respect of the suit property, in favour of the respondent-plaintiff. The appellant-defendant having come to know about the said ex-parte decree, had submitted an application under Order 9, Rule 13 for setting-aside the same, contending interalia that the appellant was never served with any summons in the suit, and that on the relevant date on which the summons was allegedly served on the wife of the appellant, the appellant and his wife were not in the City of Jaipur, and therefore the signature of the wife of the appellant was also forged one. The trial court dismissed the said application of the appellant-defendant vide the impugned order dated 05.09.2011, against which the present appeal has been filed. 4. This Court after hearing the learned counsels for the parties on 23.08.2013, was prima facie of the opinion that the trial court had proceeded with the suit ex-parte with undue haste and without verifying the record as to whether the defendant was properly served or not, and that the concerned Reader of the trial court had also acted without any authority by drawing the order sheet dated 21.12.2009 in the suit. This Court, therefore, had called for the remarks from the concerned Presiding Officer and also the concerned Reader of the trial court. Both have submitted their remarks. This Court, therefore, had called for the remarks from the concerned Presiding Officer and also the concerned Reader of the trial court. Both have submitted their remarks. The concerned Reader, who is now retired, submitted that concerned Presiding Officer was on leave on 21.12.2009 and since many matters were listed on that date, the signature on the order sheet had remained to be obtained from the concerned In-charge Presiding Officer. The concerned Presiding Officer has submitted interalia that he was on leave on 21.12.2009 and 22.12.2009, on which date the concerned In-charge Presiding Officer had passed the order for proceeding ex-parte and that he had passed the decree as the evidence of the plaintiff was not challenged by the appellant-defendant. Neither the explanation submitted by the Reader nor the explanation submitted by the Presiding Officer is found to be satisfactory. From the order sheets of the suit, it clearly transpires that the suit was filed on 19.12.2009 and the notice issued to the defendant was made returnable on 21.12.2009. On 21.12.2009, the Presiding Officer was on leave and the order sheet was drawn by the Reader as under:- " odhy oknh mifLFkrA PO vodka'k ij gS iwoZ vkns'kkuqlkj rkehy tkjh gksA i=koyh fnukad 22-12-09 dks is'k gksA 5. The said order sheet was neither signed by the concerned Reader nor In-charge Presiding Officer and the matter was kept on 22.12.2009, on which date the concerned Presiding Officer passed the order for proceeding ex-parte on the ground that the defendant was not present, though duly served. The In-charge Presiding Officer appears to have drawn the order sheet without verifying the record and thereafter the regular Presiding Officer also proceeded ex-parte with the suit without satisfying itself as to whether the defendant was properly served or not. It is needless to say that all efforts should be made by the courts to serve the defendants strictly in accordance with provisions contained in Order 5 of CPC. In the instant case, the notice issued to the defendant on 19.12.2009 was made returnable on 21.12.2009. Though no summons were prepared or sought to be served on or before 21.12.2009, the Reader drew the order sheet on 21.12.2009 for service of summons on 22.12.2009. Further, on 22.12.2009, no service was made upon the defendant but was allegedly made on his wife Kamlesh. Though no summons were prepared or sought to be served on or before 21.12.2009, the Reader drew the order sheet on 21.12.2009 for service of summons on 22.12.2009. Further, on 22.12.2009, no service was made upon the defendant but was allegedly made on his wife Kamlesh. Now, as per the affidavit filed by the appellant-defendant, neither the appellant nor his wife was present in the City on 22.12.2009 and the signature of his wife was forged one. Be that as it may, it was the duty of the In-charge Presiding Officer to verify as to whether the defendant was properly served or not, before passing the order to proceed ex-parte against him. It was also the duty of the Regular Presiding Officer to verify as to whether the defendant was properly served or not before proceeding ex-parte against him. It also appears that the suit was decreed by the Presiding Officer merely on the basis of the affidavit filed by the plaintiff and accepting the documents, without deciding the issue as to whether such documents were admissible or not. It is needless to say that even in ex-parte proceedings, the plaintiff has to prove his case by producing cogent, reliable and legal evidence and the suit should not be and could not be decreed merely because it was being proceeded ex-parte against the defendant. Though, it was sought to be explained by the Presiding Officer in his remarks that since the evidence of the plaintiff was not challenged, he had decreed the suit, such an explanation cannot be accepted for the simple reason that the suit of the plaintiff could not be decreed merely because the defendant was absent, more particularly when such suit was not tenable in eye of law and was not duly proved by him. The Court, therefore, is of the opinion that the concerned Presiding Officer had proceeded with undue haste in decreeing the suit of the plaintiff ex-parte and that too without legal evidence on record. The trial court which has passed the impugned order also was expected to look into the record of the case before dismissing the application of the appellant-defendant filed under Order 9, Rule 13 of CPC. 6. The trial court which has passed the impugned order also was expected to look into the record of the case before dismissing the application of the appellant-defendant filed under Order 9, Rule 13 of CPC. 6. Since the Court is satisfied that the summons were not duly served upon the appellant-defendant and that there was sufficient cause which prevented appellant from appearing when the suit was called on for hearing, as contemplated in Order 9, Rule 13 , and since the Court is not satisfied with the manner in which the suit was proceeded ex-parte, the decree passed in the suit as well as the impugned order passed by the trial court deserve to be set aside. Accordingly the order dated 05.09.2011 passed in Civil Misc. Case No. 67/2010 and the decree dated 25.03.2010 passed in the Civil Suit No. 148/09 are set-aside. 7. Having regard to the facts and circumstances of the case, the trial court is directed to decide the suit being No. 148/2009 on merits and in accordance with law and as expeditiously as possible preferably within a period of one year from today. The appeal is allowed accordingly. 8. Both the parties are directed to appear before the trial court on 01.10.2013. It is needless to say that both the parties shall maintain status-quo and shall not transfer, alienate or create any third party interest in the suit property, till the pendency of the suit. It is also needless to say that the appellant-defendant shall be at liberty to contest the suit on merits by filing the written statement and leading the evidence, if he desires to do so. The office is directed to send back the record of the case forthwith.Appeal Allowed. *******