MEENA PATEL Vs. HARSH AJAY BANKER

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution is directed against the order dated 10.1.2006 passed by the learned Additional Senior Civil Judge, Ahmedabad (Rural) rejecting Misc. Civil Application No. 56 of 2005 for setting aide the ex-parte decree passed by the same Court in Summary Special Civil Suit No. 65 of 2004.

(2.) THE respondent herein [hereinafter referred to as "the plaintiff"] filed Summary Special Civil Suit No. 65 of 2004 against the present petitioners [hereinafter referred to as "the defendants"] for recovery of Rs. 3,82,586-29 ps., which according to the plaintiff, was the amount outstanding towards construction of the house of the defendants. The total bills submitted by the plaintiff were for Rs. 8,97,586-29 ps., against which the defendants had paid Rs. 5,20,000/- and, therefore, the plaintiff filed the suit for recovering the balance amount of Rs. 3,77,586-29 ps. The plaintiff also claimed a further sum of Rs. 5,000/- as notice charges.

(3.) IT is the case of the petitioners herein (original defendants) that the said application was not served upon the defendants and the learned advocate for the original plaintiff does not dispute the said assertion. The learned trial Court by order dated 25.4.2005 allowed application Exh. 9 and held that the summons was served on the defendants on 7.12.2004 and not on 14.12.2004 as stated in the note of appearance filed by the defendants. In the circumstances, the defendants were required to enter their appearance by 17.12.2004. There was thus delay of 6 days in the appearance having been filed by the defendants, for which an application for condonation of delay ought to have been filed, but no such application was made, but the summons was stated to have been served on 14.12.2004.