VIMAL KUMAR Vs. DELIP SHARMA

JUDGEMENT

(1.) THE petitioner is aggrieved by an order dated 7th June 2001 passed by learned ADJ whereby an application under Order 37 Rule 4 read with Section 151 Civil Procedure Code made by the petitioner was dismissed.

(2.) BRIEF facts relevant for the purpose of deciding this petition are that the plaintiff (respondent herein) filed a suit under Order 37, against one Mr. S.P. Ahluwalia. Mr. S.P. Ahluwalia was duly served with summons and he put appearance in the suit. However, before the summons for judgment could be served on him, he died and an application to bring on record his Lrs was filed by the plaintiff. Trial court ordered a notice of this application to both the Lrs viz Vimal Kumar and Mrs. S. Devi. Both the Lrs refused to receive the notice of the application. The application was allowed by the court below on 29th October 1998 and Lrs were brought on record. Thereafter summons for judgment were issued to both the Lrs/defendants for 9th December 1998. The summons were served on defendant Mrs. S. Devi by way of affixation. However, the trial court did not treat this as good service and again ordered for service of both the defendants in terms of Order 37 CPC. Again summons were refused by Mrs. S. Devi and a copy of the same was pasted on the site. Mr. Vimal Kumar, son of the deceased S.P. Ahluwalia, was stated to be not residing there, so the plaintiff made an application under Order 5, Rule 20 for substituted service of Mr. Vimal Kumar and this was allowed. Mr. Vimal Kumar was ordered to be served by affixation on the last known address. This service was effected, however, both Mrs. S. Devi and Mr. Vimal Kumar did not appear nor filed leave to defend and the suit of the plaintiff was decreed on 7th July 1999. Soon thereafter, i.e. on 27th July 1999, an application under Order 9 Rule 13 of CPC was moved by Mr. Vimal Kumar for setting aside the decree passed by the trial court. This application was allowed to be amended and was treated as application under Order 37 Rule 4 of the CPC.

(3.) DURING arguments on the petition, counsel for the petitioner failed to satisfy this Court as to how the petitioner learnt about the passing of decree soon after 7th July, 1999 when the decree was passed. The petitioner engaged advocate on 22nd July 1999. Unless the petitioner had been keeping a watch on the court proceedings or had assigned this duty of keeping watch to somebody else, it was not possible for the petitioner to come to know about passing of the decree. No notice had gone to Sales Tax Department from the Court about the suit filed by the respondent. Therefore, the question of Sales Tax Department knowing about the suit or decree does not arise. The petitioner's counsel contended that earlier the respondent had filed another suit of injunction against Mr. S.P. Ahluwalia making the Sales Tax Department as a party. No details of this suit have been given nor it is stated that when a notice of this suit was served upon the Sales Tax Department and for what purpose and how would the Sales Tax Department come to know about passing of the decree in this case, even if summons of another injunction suit were, at some point of time issued to Sales Tax Department. It is apparent that the petitioner has taken false plea that he learnt about passing of the decree from the Sales Tax Department. A perusal of record shows that the petitioner had been evading service from the very beginning. When the notice of the application under Order 22 Rule 4 CPC was sent, the notice was evaded by both the petitioners. When the notice of the suit under Order 37 after their impleadment was sent, the same was evaded twice and the Court had to order service by affixation.