NARENDER KUMAR SHAH Vs. SAI KRIPA ENGINEERING WORKS

JUDGEMENT

(1.) IA 9363/2015 (u/O IX R 13 CPC by Defendant) and IA 9364/2015 (for delay of 65 days) in CS(OS) 431/2010.

(2.) Claim of the defendants in the two applications is that initially the suit was filed against defendant No. 1 which is a partnership firm and no service was affected on defendant No. 1. Later on the application of the plaintiff under Order 1 Rule 10 CPC defendant No. 2 and 3 were impleaded, however there was no proper service to the defendant No. 2 and 3 and without following the due process of law it was directed that defendant No. 2 and 3 be served through pasting and the learned Joint Registrar without finding whether the summons were duly executed on the defendants No. 2 and 3 by substituted service, proceeded the defendants ex-parte wrongly. It is the case of the defendants that they came to know of the suit only on 20th January, 2015 when they received the summons in Execution Petition No. 486/2014. To buttress his arguments learned counsel for the defendant relies upon the decisions in (1997) 11 SCC 159 Yallawwa (Smt) v. Shantavva (Smt.); (2002) 5 SCC 377 Sushil Kumar Sabharwal v. Gurpreet Singh and Ors.; AIR 1967 All 170 Johri Lal v. Commissioner of Income Tax; AIR 1979 AP 180 Bondla Ramalingam v. Shiv Balasiddiah and AIR 1984 Cal 182 Teharoonchand v. Surajmull Nagarmull.

(3.) In respect of the application for condonation of delay of 65 days in filing the application under Order 9 Rule 13 CPC, defendants claim that on coming to know about the decree, defendants engaged a counsel who filed his vakalatnama on 3rd February, 2015 in CS(OS) 431/2010 and Execution Petition No. 486/2014 and conducted the inspection of Court file on 4th February, 2015. Since no documents were available, learned counsel for the defendants applied for the certified copies of the plaint, documents and annexures in CS(OS) 431/2010 vide diary No. 2118/2015 dated 5th February, 2015. Since the defendants had been proceeded ex-parte, certified copies of the documents were not supplied to the defendants. Thus the defendants filed an application under section 151 CPC in CS(OS) 431/2010 being IA No. 4872/2015 on 27th February, 2015, however the said application was kept pending and till date the defendants have not received the certified copies. Thus delay of 65 days was caused in filing the application under Order 9 Rule 13 CPC.