CHANDER PAL Vs. BRM LEASE AND CREDIT LTD

JUDGEMENT

(1.) (ORAL) 1. The present civil revision has been filed under Section 115 read with Section 151 of the Code of Civil Procedure (CPC) against order dated 09.03.2011 passed by the ld. Additional District Judge whereby the appeal filed by the petitioner, against dismissal of his applications, under Order 9 Rule 13 CPC and Section 5 of the Limitation Act in suit no. 376/ 05, was dismissed.

(2.) THE said suit was filed by respondent no. 1 against the petitioner and respondent no. 2 for recovery of Rs. 1, 59,052/- claiming that the petitioner got financed from respondent no. 1 a motor vehicle and respondent no. 2 stood as surety. It was alleged that petitioner and respondent no. 2 defaulted in the repayment of the loan. Summons of suit were issued for service upon petitioner and respondent no. 2 and vide order dated 27.05.2006, they were proceeded against ex-parte. The suit came to be decreed against both, the petitioner and respondent no. 2 for recovery as well as for permanent injunction in respect of vehicle. The petitioner filed an application under Order 9 rule 13 CPC before the ld. trial Court along with an application under Section 5 of the Limitation Act. Vide order dated 30.07.2010, both the applications were dismissed. The petitioner then filed an appeal against the said order of dismissal on the ground that he was not duly served. The ld. Additional District Judge vide order dated 09.03.2011 dismissed the appeal and observed that it was evident from the Court's record that the process was sent by registered post as well as courier twice and the petitioner had refused to accept it and he consequently dismissed the appeal which is under challenge in this petition.

(3.) THE only contention of learned counsel for the petitioner which is raised in the instant petition is the same that was raised before the Court of Civil Judge as also before the ADJ, that the petitioner never refused of the summons and was thus not served, and therefore, the ex-parte decree was liable to be set aside. It was also his submission that, in any case, the delay in filing of application under Order 9 Rule 13 CPC was liable to be condoned in the interest of justice.