PARAS GULATI Vs. RAM CHANDER

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is filed by the plaintiff impugning the order of the trial court dated 15.5.2013 by which the trial court has allowed the application filed by the respondent/defendant under Order IX Rule 13 of Code of Civil Procedure, 1908 (CPC) and has set aside the ex parte decree of possession dated 5.7.2008.

(2.) The subject suit was a suit for possession filed by the petitioner/plaintiff against the defendant/respondent claiming possession with respect to suit shop no.7, 3159, Bedonpura, Karol Bagh, New Delhi- 110005. In this suit, the defendant is stated to have been served through the employee/servant of the respondent/defendant and since the respondent/defendant failed to appear thereafter, the suit was decreed ex parte in term of the judgment dated 5.7.2008.

(3.) Learned counsel for the petitioner argues before this Court that once there are disputed questions of facts as to whether or not the defendant in the suit was served, then in facts of cases such as the present, before allowing an application under Order IX Rule 13 CPC, issues must be framed and parties must be allowed to lead evidence in order to arrive at a conclusion with respect to whether or not service was effected on the respondent/defendant through his employee/servant i.e whether there was due service upon the respondent /defendant and that he was thereafter rightly proceeded ex parte.