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2016 DIGILAW 1737 (RAJ)

Pomaram S/o Bhagaji v. Dhanram S/o Babulal

2016-12-01

DEEPAK MAHESHWARI

body2016
JUDGMENT : Mr. Deepak Maheshwari, J. 1. This writ petition has been preferred challenging the judgment and decree dated 02.02.2015 (Annex.4), orders dated 10.02.2016 (Annex.9) and 04.06.2016 (Annex.11) passed by learned Civil Judge (JD), Sumerpur, District Pali and learned Addl. District Judge, Sumerpur, District Pali respectively. It has also been prayed that the application filed by the petitioner under Order 9, Rule 13 CPC before the trial Court may kindly be allowed and the suit may be ordered to be re-tried after giving opportunity of hearing to the petitioner. 2. It has been averred by learned counsel for the petitioner during arguments that a summary suit under Order 37, Rule 1 & 2 CPC was filed by the respondent plaintiff – Dhanaram against the petitioner and one other – Narayanlal (respondent No.2 herein) for recovery of Rs.1,06,000/-. The second respondent herein put his appearance in that suit. However, service was not effected upon the petitioner, still learned trial Court proceeded to issue summons for judgment on 2.1.2015. After showing that the petitioner has refused the service of the same, ex-parte proceedings were initiated against him. Learned trial Court proceeded to pass the impugned judgment and decree dated 2.2.2015 whereby the suit filed by the plaintiff respondent was decreed against the petitioner as well as respondent No.2 jointly and severally. As soon as the petitioner came to know about the decree, he filed an application under Order 9, Rule 13 CPC for setting aside the same. Vide the order impugned dated 10.2.2016, learned trial Court rejected the application. Petitioner preferred an appeal against the said order, which also came to be rejected vide order dated 4.6.2016 by learned Addl. District Judge, Sumerpur. 3. Learned counsel has argued that as per the requirement of Order 37, Rule 2 CPC, the summons of the suit were not served upon the petitioner. He has referred to the order-sheet dated 08.12.2014 of learned trial Court wherein mention has been made regarding service of summons upon defendant No.2 only. He has further argued that summons for judgment were ordered to be issued on 08.12.2014 though the petitioner had not put his appearance as per Order 37, Rule 3 CPC. Vide order dated 2.1.2015, trial Court recorded that the summons issued for defendant No.1 (petitioner herein) have been refused by him. He has further argued that summons for judgment were ordered to be issued on 08.12.2014 though the petitioner had not put his appearance as per Order 37, Rule 3 CPC. Vide order dated 2.1.2015, trial Court recorded that the summons issued for defendant No.1 (petitioner herein) have been refused by him. On the basis of the said refusal, his service was presumed to have been effected and ex-parte proceedings were initiated against him. 4. Learned counsel has also contended that the envelope (Annex.5) upon which the note of refusal has been mentioned was not issued on the correct and complete address of petitioner. It has also not been specified on the said envelope as to when and who refused to accept that envelope, hence, the learned Court ought not to have presumed the service upon the petitioner on the basis of such refusal. He has further submitted that the application (Annex.6), which is alleged to have been submitted by the petitioner along with his registered address has not actually been submitted by the petitioner. His signatures on the said application (Annex.6) has been forged. He has never engaged Mr. Madan Lal Soni as his counsel under whose signature the registered address is alleged to have been submitted on 17.09.2014. It has also been argued that upon the envelope (Annex.5) "Sindlo Ka Bas" has been added but it is not clear as to under what circumstances or upon whose information this addition has been made in the address mentioned on the envelope (Annex.5). In view of the above discrepancies, learned counsel for the petitioner argued that the service was not properly effected upon the petitioner in respect of both the summons but learned trial Court, without taking note of these discrepancies, has rejected the application filed under Order 9, Rule 13 CPC. Learned trial Court has arrived at its conclusion simply on the basis of comparing the signature of petitioner Pomaram appended upon the 'Vakalatnama' and the signature appended upon the application Annex.6. Learned appellate Court has also rejected the appeal while coming to the conclusion that the reasons given by the Court below are correct 5. Learned trial Court has arrived at its conclusion simply on the basis of comparing the signature of petitioner Pomaram appended upon the 'Vakalatnama' and the signature appended upon the application Annex.6. Learned appellate Court has also rejected the appeal while coming to the conclusion that the reasons given by the Court below are correct 5. Learned counsel for the petitioner has referred to the judgments rendered by Hon'ble Supreme Court in case of G.P. Srivastava v. R.K. Raizada & Ors., reported in (2000) 3 SCC p.54 and in case of State of Nagaland v. Lipok AO & Ors., reported in (2005) 3 SCC p.752 and contended that firstly, the service was not properly effected and secondly, the delay in preferring the application under Order 9, Rule 13 CPC has been sufficiently explained and thus in light of the above referred judgments, the petition should be allowed. 6. Per contra, learned counsel appearing for the respondents has refuted the arguments advanced by learned counsel for the petitioner. He has submitted that the service was properly effected upon the petitioner. Thereafter, he has submitted his registered address through counsel Mr. Madan Lal Soni. Upon the said address, the summons for judgment was issued, which were refused by the petitioner. If the summons are sent through registered post on the address given by the defendant/petitioner and the said envelope is refused then, the service can very well be presumed to have been effected. Thus, trial Court has not committed any mistake in presuming the service. He has also contended that the decree was passed against the petitioner on 2.2.2015 whereas the application under Order 9, Rule 13 CPC has been preferred on 18.1.2016. No sufficient explanation for delay of 11 months has been rendered, hence the application has been rightly rejected by the Court below. He has also contended that the affidavit filed by the petitioner in support of his application under Order 9, Rule 13 CPC also bears the same address upon which the service was effected, hence, the plea taken by the petitioner cannot be accepted. Thus, the petition deserves rejection. 7. He has also contended that the affidavit filed by the petitioner in support of his application under Order 9, Rule 13 CPC also bears the same address upon which the service was effected, hence, the plea taken by the petitioner cannot be accepted. Thus, the petition deserves rejection. 7. Having given thoughtful consideration to the rival contentions and after having perused the relevant documents and on perusal of order-sheet dated 08.12.2014, it is apparently clear that there is no note to the effect in the order( sheet that the summons issued under Order 37, Rule 2 (2) CPC have been served upon defendant No.1 (petitioner herein). Of course, there is over writing in the second line of the said order-sheet but it also records the filing of the 'Vakalatnama' on behalf of defendant No.2 only. When the summons issued under Order 37, Rule 2 CPC have not been found to be served upon the petitioner, there was no occasion for him to come forward by himself and to submit his registered address or to enter an appearance before the court as required under Order 37, Rule 3 CPC. Resultantly, there was no occasion to issue the summons for judgment under Order 37, Rule 3 (4) CPC for defendant No.1. In view of above, the order-sheet written on 2.1.2015 regarding presuming the service of defendant No.1 on the basis of the refusal of the said envelope cannot be considered to be justified and legally perfect, more so, when the application (Annex.6) and the registered address filed along with it is alleged to be forged and not actually filed by petitioner Pomaram. No 'Vakalatnama' has also been found on the record to engage Mr. M.L. Soni by the petitioner under whose signature, the said registered address is alleged to have been filed. The conclusion arrived at by trial Court and upheld by the learned appellate Court on the basis of the comparison of the signature of petitioner Pomaram does not appear justified in absence of the enquiry conducted in this regard. The proper course should have been to enquire into the matter after giving opportunity to both the parties, which has not been afforded. Hence, the conclusion arrived at by both the Courts below cannot be sustained. 8. The proper course should have been to enquire into the matter after giving opportunity to both the parties, which has not been afforded. Hence, the conclusion arrived at by both the Courts below cannot be sustained. 8. On perusal of judgment impugned dated 10.02.2016 as also 04.06.2016, it appears that the application filed under Order 9, Rule 13 CPC has not been rejected on the ground of delay or for insufficient explanation of the delay. Thus, the judgments referred by learned counsel for the petitioner are not relevant in the matter in hand. 9. In view of above discussions, the judgments impugned suffer from infirmity and are required to be quashed and set aside and accordingly the same are quashed and set aside. Though prayer has also been made by way of this writ petition to allow the application filed under Order 9, Rule 13 CPC but it would be appropriate to mention here that the provisions contained in Rule 4 and 7 of Order 37 CPC are required to be taken note of. The petitioner may take necessary steps, if so advised, in view of these provisions for getting the decree dated 02.02.2015 set aside. 10. This writ petition is disposed of accordingly.