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2019 DIGILAW 346 (RAJ)

Kalyan Singh v. Sohan Lal

2019-01-30

P.K. LOHRA

body2019
JUDGMENT : P.K. Lohra, J. Appellant-Defendant has preferred this appeal to challenge order dated 02.11.2015, passed by Additional District Judge, Suratgarh, District Sriganganagar, dismissing his application under Order 9 Rule 13 CPC for setting aside ex-parte decree dated 15.05.2007. 2. The facts, in brief, are that respondent-plaintiff filed a suit for specific performance of contract, inter-alia, on the ground that appellant-defendant executed an agreement to sale dated 08.01.2001 in his favour for the suit property but later on declined to perform his part of the contract. Learned trial Court issued summons to the appellant and those summons were served but the service of summons was taken as irregular service and, therefore, fresh summons were issued. The summons issued by learned trial Court second time were served by affixation, as the process server reported that despite tendering summons, appellant refused to accept the same. The affixation was carried out in presence of two witnesses and both of them also appended their signatures overleaf the summons. Treating the service of summons on appellant sufficient, learned trial Court proceeded exparte against him and finally after recording ex-parte evidence of the respondent-plaintiff decreed the suit on 15.05.2007. 3. Feeling dismayed with the ex-parte decree, at the behest of appellant, an application under Order 9 Rule 13 CPC read with Section 151 was submitted on 31.07.2007 before learned trial Court. The application is contested by respondent-plaintiff and the learned trial Court, after examining the matter, recorded its finding that service of summons was sufficient and, therefore, no case for setting aside ex-parte decree within the four corners of Order 9 Rule 13 CPC is made out. With this finding, learned trial Court rejected the application. 4. I have heard learned counsel for the parties, perused the impugned order and also examined record of the case. 5. There remains no quarrel that the summons, which were issued to the appellant-defendant, were served by affixation at the conspicuous place of his residence precisely for the reason that as per process server he refused to accept the same. It is also borne out from the returned summons that two attesting witnesses have appended their signatures. Be that as it may, the fact remains that learned trial Court has not recorded any evidence in this regard and, simply by presuming the service to be sufficient may be irregular, has declined prayer of the appellant for setting aside ex-parte decree. It is also borne out from the returned summons that two attesting witnesses have appended their signatures. Be that as it may, the fact remains that learned trial Court has not recorded any evidence in this regard and, simply by presuming the service to be sufficient may be irregular, has declined prayer of the appellant for setting aside ex-parte decree. 6. While it is true that under Order 9 Rule 13 CPC, stringent provisions are prescribed for setting aside ex-parte decree, and more particularly second proviso envisages with clarity and precision that ex-parte decree cannot be set aside merely on the ground of irregularity in service of summons, but then the discretion of the Court is not fettered in certain special cases for doing substantial justice in the matter. The Court, while exercising its jurisdiciton under Order 9 Rule 13 CPC is also expected to see the nature of suit and its consequences, and may take a benevolent view in the interest of justice. 7. In the instant case, the suit is for specific performance of contract wherein stakes are high and, therefore, it appears just and appropriate that such a dispute is to be decided after bipartite hearing and giving reasonable opportunity to both the parties to tender their evidence. The suit for specific performance of contract pre-supposes that plaintiff is required to prove his readiness and willingness to perform his part of the contract and furthermore, in the event of passing of decree, it has adverse effect on the rights of defendant, as he may be asked to perform his part of contract without contesting the same. However, looking to the conduct of the appellant, who has shown indolence in appearing before the Court and contesting the matter, when he had some whisper about the proceedings being going on against him, I feel persuaded to exercise discretion in favour of the appellant subject to certain conditions. 8. A litigant is not expected to be dormant when the proceedings are being undertaken against him and that being so, the instant order merits annulment subject to the condition that appellant-defendant shall pay cost of Rs. 11,000/- to the respondent-plaintiff within a period of three weeks from today. 9. The parties with their respective counsels may appear before learned trial Court on 20.02.2019. 10. 11,000/- to the respondent-plaintiff within a period of three weeks from today. 9. The parties with their respective counsels may appear before learned trial Court on 20.02.2019. 10. It is made clear that requisite amount of cost be paid or deposited by the appellant positively on or before 20.02.2019 with the learned trial Court. The learned trial Court is also expected to proceed with trial of the suit de novo strictly in accordance with law and decide the main suit afresh within a period of six months thereafter. Taking into account a very significant fact that suit was initially filed way back in the year 2005, registry is directed to send back the record forthwith. 11. The appeal stands allowed accordingly subject to observations made supra.