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2018 DIGILAW 2127 (RAJ)

Anaram Mali v. Shriram Traders

2018-10-24

SANDEEP MEHTA

body2018
JUDGMENT : SANDEEP MEHTA, J. 1. Through this writ petition under Article 227 of the Constitution of India, the petitioner has approached this Court for assailing the order dated 6.1.2017 passed by the learned Additional Civil Judge No. 2, North Udaipur in Civil Case No. 81/2016 whereby, the application filed by the petitioner under Order 9 Rule 13 of CPC read with Section 5 of the Limitation Act, was dismissed, so also, the order dated 9.8.2018 whereby the appeal filed against the order dated 6.1.2017 was dismissed. 2. Facts in brief are that the respondent Shriram Traders filed a money suit for a sum of Rs. 90,045/- against the firm Deonarayan Sabji Bhandar, Sabji Mandi, Desuri through Anil Kumar Mali. The summons were duly served upon the defendant who failed to appear in the court. Accordingly, the suit was decreed ex-parte by judgment dated 7.12.2015. After eight months of the suit being decreed, the petitioner approached the trial court and filed the questioned application under Order 9 Rule 13 read with Section 151 C.P.C. claiming that his name is not Anil Kumar. He does business by the name of Anaram and that summons of the suit were never served upon him. The application was supported by an application under Section 5 of the Limitation Act for condoning the delay. The trial court issued notices of the application to the respondent plaintiff and dismissed the same after hearing arguments of the parties by order dated 6.1.2017. The order dated 6.1.2017 was challenged before the District Judge, Udaipur by preferring an appeal which too was dismissed by order dated 9.8.2018. The petitioner has assailed both these orders through this writ petition filed under Article 227 of the Constitution of India. 3. I have given my thoughtful consideration to the arguments advanced at Bar and have gone through the impugned orders and other material placed on record. 4. A bare perusal of the impugned orders is sufficient to satisfy the Court that the summons of the suit issued by the trial court were served upon the petitioner on 28.9.2015. The petitioner intentionally failed to appear in the court for contesting the suit. Accordingly, the suit was decreed ex-parte by the trial court. 4. A bare perusal of the impugned orders is sufficient to satisfy the Court that the summons of the suit issued by the trial court were served upon the petitioner on 28.9.2015. The petitioner intentionally failed to appear in the court for contesting the suit. Accordingly, the suit was decreed ex-parte by the trial court. The claim of the petitioner that he does not answer to the name Anil Kumar was not found established because the identification documents submitted on the court record clearly establish that name of the petitioner is indeed Anil Kumar. 5. In view of these facts and since the petitioner intentionally failed to appear before the trial court to contest the suit proceedings and as two competent civil courts have recorded concurrent findings of facts against the petitioners in the impugned orders which ex-facie do not suffer from any illegality, irregularity or error apparent on the face of record whatsoever, this Court is least inclined to interfere therein while exercising its supervisory writ jurisdiction. 6. Hence, the writ petition as well as stay application are dismissed summarily as being devoid of substance.