PATEL DEVJI NARAN BHUDIA Vs. DILIP SHYAMDASJI KABIRPANTHI

JUDGEMENT

(1.) The appellant against whom the ex-parte decree was passed on July 22, 1986 in Special Civil Suit No. 8 of 1985 for specific performance of the contract, has preferred this Appeal From Order against the judgment and order dated February 10, 1989 passed by the learned 2nd Joint Civil Judge (S.D.), Kutch at Bhuj, rejecting the application of the appellant herein (being Civil Misc. Application No. 90 of 1986) for setting aside the aforesaid ex-parte decree.

(2.) Mr.Jayant Patel, learned Advocate appearing for the appellant, has taken me through the relevant record and the impugned judgment. He contended that the summons that was ordered to be issued in the Special Civil Suit No. 8 of 1985 was for settlement of the issue and it was not for final disposal of the suit. Mr. Patel invited my attention to the order dated 29-1-1985 passed by the learned Civil Judge (S.D.) at Bhuj to issue summons under Order V, Rules 1 and 5 of the Code of Civil Procedure for settlement of issues. The learned Judge has clearly struck off "final disposal" in the said order. Relying upon this order passed below plaint Exh. 1, Mr. Patel submitted that at the initial stage the summons was for the purpose of settlement of issues and in absence of any other summons for final disposal of the suit, no decree, much less ex-parte decree could have been passed against the appellant. There is also another order dated 18-2-1985 passed by the trial Court below the plaint to the effect that the summons on the defendant and the notice of the injunction are served by affixing and on calling out his name, he is not present and as such the proceeding of the suit be conducted ex- parte against him. However, there does not appear to be any order passed by the trial Court that the substituted service by affixing summons on the outer part of the residence of the defendant or at a conspicuous part of his residence, be effected.

(3.) As against this submission of Mr. Patel, Mr. M. B. Gandhi, learned Advocate appearing for the respondent, has relied on the copy of the summons itself, wherein it is clearly mentioned that the summons is issued for the settlement of the issues and on the date of hearing, i.e., 18-2-1985 if the defendant fails to appear before the Court, the suit will be disposed of in his absence. Pointing out the copy of the said summons at Exh. 9, page 38, Mr. Gandhi submitted that the summons that was issued was under Order V, Rules 1 and 5 of the Code of Civil Procedure, 1908 and as such it cannot be said that the summons was only for the settlement of the issues.