PATEL BABUBHAI BUTABHAI Vs. KOLI KHODABHAI MANGALBHAI

JUDGEMENT

(1.) The appeal has been admitted for hearing the parties vide Order dated 11th September, 2006 on the following substantial questions of law:

(2.) The short facts leading to the present appeal are that Koli Khodabhai Mangalbhai had filed Civil Suit No.42 of 1993 against the present appellant, Patel Babubhai Butabhai. The learned trial Court in the said suit, after holding that the defendant (present plaintiff-appellant) was duly served, proceeded ex parte and ultimately, granted decree in favour of the present respondent " Koli Khodabhai Mangalbhai.

(3.) Shri K. A. Dave, learned Counsel for the appellant, submits that from the records, it would clearly appear that the Courts below were not justified in observing that there would be a presumption of service against the present plaintiff and that the brother was served with the notice of the suit, therefore, there was sufficient notice to the present appellant. His submission is that once the learned trial Court had, in the said suit, observed that the defendant be served by substituted service, then, no other mode could be allowed and in any case, the summons could not be served upon the brother of the defendant of the said suit i.e. plaintiff of the present suit.