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2016 DIGILAW 2503 (HP)

Ganga Devi v. Om Prakash

2016-11-29

SURESHWAR THAKUR

body2016
Sureshwar Thakur, J. Under Ex. AW1/D, the learned Civil Judge (Junior Division), Solan, ex-parte decreed the suit of the plaintiff. The pronouncement of the Civil Court aforesaid occurred on 23.8.2011. On 7.03.2012, the defendant/petitioner herein motioned the learned trial Court under an application constituted there before under Order 9, Rule 13 of the CPC, wherein, she concerted to beget quashing of the ex-parte pronouncement recorded by the learned trial Court, on anvil of hers not coming to be properly served in consonance with the mandate of Order 5, Rule 2 of the CPC constituted in the factum of the process server concerned in transgression thereof while proceeding to effectuate personal service of the apposite summons upon her, the latter remaining un-appended with a copy of plaint nor obviously the process server concerned delivering its copy to the defendant at the stage when he effectuated personal service of summons upon her in Civil Suit No. 47/1 of 2010. 2. The aforesaid ground stood discountenanced by the learned trial Court. In an appeal carried therefrom by the defendant before the learned District Judge, the latter affirmed the pronouncement recorded by the learned trial Court on the application moved there before by the defendant/petitioner herein under Order 9, Rule 13 of the CPC. Consequently, the defendant standing aggrieved by the concurrently recorded renditions of both the learned Courts below has instituted the instant revision petition whereby she concerts to beget their reversal hereat. 3. As aforestated with the defendant in her apposite application constituted under Order 9, Rule 13 of the CPC before the learned trial Court canvassing therein qua the copy of summons at the relevant stage when the process server effectuated personal service of summons upon her, remaining un-appended with a copy of plaint, is an abundant portrayal of the defendant acquiescing to the factum of the process server concerned effectuating personal service of summons upon her. In sequel, thereto, the trite factum warranting adjudication is whether the contention of the learned counsel for the defendant qua the reason assigned in the concurrently recorded renditions of both the learned Courts below qua at the relevant time whereat the process server concerned effectuated upon her personal service of summons, the latter standing accompanied by a copy of the plaint also the latter standing delivered to the defendant not holding any tenacity acquires any succour. 4. 4. The counsel for the defendant/petitioner in making the aforesaid submission qua it not holding any tenacity hinges it upon the factum qua with the process server concerned recording an endorsement on the reverse of the relevant summons where within a display is held qua his at the relevant time also delivering a copy of the plaint to the defendant enjoined the plaintiff/respondent herein to examine the process server concerned for thereupon facilitating un-earthings from him qua the veracities of the recitals occurring on the reverse of the summons, whereas the plaintiff omitting to examine the process server rendered the endorsement made on the reverse of the summons by the process server concerned to not hold any validity or authenticity. However, the aforesaid contention holds no force as apparently the onus in proof qua the factum of the defendant standing not come to be properly served arising from the factum of the summons at the relevant time they stood uncontrovertedly delivered to her theirs remaining unaccompanied by a copy of the plaint nor the latter standing delivered upon her, was squarely cast upon the defendant/petitioner herein. Also the defendant/petitioner herein stood enjoined to by adducing emphatic sustainable evidence hence discharge the onus qua the aforesaid issue. In sequel, thereto, obviously, the plaintiff/respondent herein was not enjoined to discharge the onus on the aforesaid issue. In aftermath, with the onus qua the aforesaid issue remaining un-discharged by the defendant/petitioner herein comprised in hers summoning the process server concerned for hers thereupon subjecting him to examination for making apposite elicitations from him for belying the efficacy of the endorsement made by him on the reverse of the summons wherein recitals stood embodied qua his alongwith personally serving a copy of summons upon the defendant his also thereat delivering a copy of the plaint to her, besides when the aforesaid endorsement would stand belied by the defendant by hers procuring the relevant apposite records available with the establishment of the learned trial Court. However, the defendant/petitioner omitted to make the aforesaid efforts for belying the efficacy of the endorsement made by the process server on the reverse of the summons wherein echoings are held qua his along with the summons delivering also a copy of the plaint to her, whereupon the apt sequel is of it holding validity. However, the defendant/petitioner omitted to make the aforesaid efforts for belying the efficacy of the endorsement made by the process server on the reverse of the summons wherein echoings are held qua his along with the summons delivering also a copy of the plaint to her, whereupon the apt sequel is of it holding validity. In aftermath, the argument addressed by the counsel for the petitioner before this Court qua the mandate of Rule (2) of Order 5 of the CPC standing infringed whereupon he submits qua no proper service standing effectuated upon the defendant holds no force also thereupon he cannot espouse qua the ex-parte decree pronounced upon the defendant wanting in efficacy. 5. For the foregoing reasons, there is no merit in the instant petition, which is accordingly dismissed. The renditions impugned before this Court are maintained and affirmed. All pending applications also stand disposed of.