RAM CHANDER SHARMA Vs. CHANDRA MOHINI

JUDGEMENT

(1.) Appellant'S application under Order 9 Rule 13 of CPC stands dismissed vide impugned order of 16th May, 2016, which is challenged by learned counsel for appellant on the ground that appellant/defendant was erroneously proceeded ex parte vide order of 22nd April, 2009 as ordersheet of earlier date shows that no fresh summons were issued for 22nd April, 2009 and, so dismissal of appellant's application is wholly unjustified.

(2.) During the course of hearing, appellant's counsel has drawn the attention of this Court to trial court's order-sheet of 22nd April, 2009 to submit that no summons were issued for 26th April, 2009 and, so proceeding ex parte against appellant-defendant was wholly unjustified, particularly when respondent had filed an application for getting the appellant served through the counsel in some other case.

(3.) On the other hand, it is submitted by learned counsel for respondent that the order-sheet previous to 22nd April, 2009 discloses that some counsel had appeared on behalf of the appellant before the trial court and, so no fresh summons were required to be issued. It is pointed out that appellant was served for 28th January, 2009 by speed post as speed post receipt of 22nd January, 2009 on record discloses that the appellant's address mentioned therein was correct and, so there is service of presumption and that is why on the next date i.e. 26th February, 2009, some counsel had appeared on behalf of appellant before the trial court. Upon hearing and on perusal of the impugned order, the ordersheets of the trial court and the material on record, I find that summons were sent to appellant for 28th January, 2009 at the correct address. Under the General Clauses Act, a presumption of service arises when the summons are sent through speed post AD. Since some counsel had appeared on behalf of appellant before the trial court on 26th February, 2009, therefore, the inference of service upon appellant drawn by the trial court is fully justified. No reason is forthcoming from the side of appellant as to why there was no appearance on 22nd April, 2009, the date fixed before the trial court, and so, on that day, appellant-defendant was rightly proceeded ex parte.