MOHD SALEEM Vs. EJAJ AHMED

JUDGEMENT

(1.) Instant miscellaneous appeal filed under Order 43 Rule 1(t) of the Code of Civil Procedure, 1908 (for short "the Code") is directed against the order dated 22-11-1996 passed in MJC No. 35/1996 by the 7th Additional District Judge, Bilaspur rejecting the appellant's application filed under Order 41 Rule 21 read with Section 151 of the Code. This is a landlord-tenant litigation. The appellants and respondent are legal representatives of original tenant/defendant and landlord/plaintiff, who died during pendency of this appeal. The original defendant/tenant was aggrieved by an ex parte decree dated 13-5-1996 passed by the 7th Additional District Judge, Bilaspur in Civil Appeal No. 20-A/1993 reversing the judgment and decree dated 22-2-1993 passed by the 6th Civil Judge Class-2, Bilaspur in Civil Suit No. 78-A/1991 and granting decree for recovery of arrears of rent and eviction from the suit premises.

(2.) An application under Order 41 Rule 21 read with Section 151 of the Code seeking setting aside of ex parte decree was filed, which was opposed, enquired into and rejected by the First Appellate Court. Hence, this appeal.

(3.) A perusal of record of the proceedings shows that the Process-Server was entrusted with summons for service on the defendant/tenant. The date of hearing fixed was 15-12-1995. As per the endorsement of the Process-Server on the summons, he went to the spot. The defendant was present there on 14-12-1995. He tendered him the summons. The defendant/tenant refused to accept the summons. Then, he served the summons by throwing the same on his body. Admittedly, neither the above endorsement was witnessed by any person identifying the defendant/tenant and the suit premises nor the Process-Server has filed any affidavit in terms of Order 5 Rule 19 of the Code.