BALA GUPTA Vs. MICHAEL G RIKHI

JUDGEMENT

(1.) Plaintiff filed a suit for injunction against the defendant on the allegations as contained in the plaint. The suit was registered on 7.4.1998 and summons were issued for 15.4.98. For 15.4.98, the defendant was not served and summons were, therefore, again sent to the defendant for 17.4.98'. On 17.4.98, the Court held that the defendant had refused to accept the summons and he was, therefore, proceeded ex-parte. The ex-parte evidence was directed to be led on 12.5.98. On 12.5.98, the plaintiff appears to have taken an adjournment and the matter was, therefore, adjourned to 25.8.98 for leading ex-parte evidence. The matter was, however, taken up on 15.5.98 on an application of the plaintiff for early hearing. The application was allowed and the matter was, therefore, preponed to 22.5.98 for ex- parte evidence. On 22.5.98, ex-parte evidence by way of affidavits was filed and the matter was adjourned to 18.9.98. It appears that an application was again filed by the plaintiff for early hearing which was taken up on 25.5.98. The application was allowed and the matter was adjourned to 29.5.98 for arguments. On 29.5.98, the Court passed an ex-parte decree against the defendant.

(2.) The defendant filed an application on 5.6.98 for setting aside the ex-parte decree. By the impugned order the learned Trial Court has allowed the application and set aside the ex-parte decree passed against the defendant on the ground that the summons were not duly served upon the defendant. Being aggrieved by this order the present revision petition has been filed by the plaintiff.

(3.) It is the contention of the plaintiff that firstly the defendant was duly served for 17.4.98 and secondly even assuming that he was not served, the plaintiff had informed the defendant on 4.5.98 that he has already been proceeded ex-parte in the suit filed against him and he was also informed of the next date of hearing. It is the contention of learned Counsel for the plaintiff that since the defendant was aware of the proceedings against him and he having not taken any steps to set aside the ex- parte order this Court should not set aside the decree on the ground that there was any irregularity in the service of summons as the defendant was not aware of the date of hearing and he had sufficient time to appear and answer the plaintiffs claims.