RAI PREM CHANDRA Vs. OBEETEE PVT LTD

JUDGEMENT

(1.) THIS is a defendants' First Appeal From order against order dated 5-1-1989 passed by the 5th Addl. Civil Judge, Varanasi in Misc. Case No. 59 of 1987 Prem Chandra v. Obeetee Pvt. Ltd., whereby their application for setting aside the ex parte judgment and decree dated 3-12-1986 had been dismissed.

(2.) SHORN of unnecessary details, the plaintiff's suit was dismissed on 21-1I-1985 in the absence of the parties. Thereafter, the suit was restored to its original number on 11-4-1986. It appears that the plaintiff's suit has been decreed on 3-12-19a6 ex parte. On 27-5-1987, the defendants filed an application for setting aside the ex parte decree dated 3-12-1986 alleging that the defendants' counsel was not served with any notice about the date in the case after the restoration of the suit on 11-4-1986 and that the plaintiff had obtained service against the defendants through publication on wrong facts. The defendants came to know of the ex parte decree on 24-5-1987 through a representative of the plaintiff and thereafter got the file inspected on 27-5-1987. On the aforesaid fact, the defendants prayed for setting aside the ex parte decree dated 3-12-1986 against them. (See Annexures '2' attached with the stay application)-

(3.) LEARNED counsel for the plaintiff-respondent has tried to refute the contentions raised on behalf of the defendants-appellants and has asserted that the conduct of the defendants in this case is such that every time the defendants had been served through publication (substituted service). Therefore, the trial court has arrived at correct conclusion and has rightly refused to set aside the ex parte decree against the defendants The learned counsel for the plaintiff-respondent has also emphasised that that in the facts and circumstances of the case, if the ex parte decree is set aside, it should be subject to heavy cost.