SARDAR KARAM SINGH Vs. JAI KISHAN AND ANOTHER

JUDGEMENT

(1.) This first appeal filed by Sardar Karam Singh one of the defendants, is directed against the order refusing to set aside an ex parte decree passed by the Additional Civil Judge Muzaffarnagar. Briefly stated the facts are that the opposite party Jai Kishan brought a suit for recovery of Rs. 15,000.00 as damages against the present appellant, the State of U.P. and one other Sardar Arjun Singh who has since died. The suit was instituted in forma pauperis and the notice of these proceedings was personally served upon the present appellant but he did not contest those proceedings and wrote at the back of the notice that there was a compromise between the parties. The State Government, I am told, contested the pauper proceedings but ultimately the plaint was registered in forma pauperis.

(2.) After the registration of the plaint summonses were issued to the present appellant to the same address on which he had been served with the notice of the pauper proceedings but the notices were every time returned unserved whether sent in the ordinary course or through registered post. Ultimately service was effected by the publication in a weekly paper of Meerut named 'Hamara Desh'. In spite of the publication of the notice the present appellant did not put in appearance and the case proceeded ex parte so far as he went. The State Government contested the suit. The suit was ultimately dismissed against the State Government but it was decreed ex parte against the present appellant and the judgment was pronounced on 28-2-1962. An application for setting aside the ex parte decree on behalf of the present appellant was made on 3-5-1962 and the main ground was that the appellant had no knowledge of the suit and the summonses were not duly served upon him. An affidavit in support of the application was filed. The plaintiff-respondent contested this application and he also filed a counter affidavit stating that the defendant had knowledge of the suit and that his absence was wilful. The court below has accepted the plain tiff's contention and has dismissed the restoration application. So this apepeal by the defendant-appellant.

(3.) Sri Shanti Bhushan, learned Advocate for the appellant, has con-tended that summonses were not duly served upon defendant-appellant and he had no notice of the date of the suit, that he came to know of the decree on 21-4-1962 at Baghpat Bus Stand, that thereafter an inspection of the Court record was made and the application was presented. It was within time from the date of the knowledge and the court below was wrong in holding that the appellant had knowledge of the suit. It is also his contention that the proviso to Order 9 rule 13 did not apply and the court below was wrong in dismissing the application. Sri A.B. Saran, learned counsel for the respondent, has on the other hand, contended that the absence of the defendant-appellant was deliberate and that the summonses in the case were issued to the same address as notice of the pauper proceedings and the very fact, that the notices of pauper proceedings were personally served but not the summonses coupled with the further fact that the defendant had written on the notice of the pauper proceedings that there was a compromise between the parties goes to show that defendant did not want to contest the suit and deliberately absented himself and so there was no cause for setting aside the decree. It is also his contention that if the decree was to be set aside it should be set aside against all the defendants because the decree is one and indivisible. The learned standing counsel has contended on behalf of the State that order 9 rule 13 does not apply to the decrees passed after contest and in this case the suit having been dismissed on merit against the State and the plaintiff-respondent having also filed an appeal in the High Court the decree against the State cannot be set aside. Proviso 2 to order 9 Rule 13 is said to have a limited scope. He has further submitted that according to the allegations made in the plaint and the relief claimed, the plaintiff sought a decree against the State in the first instance or against the defendant-appellant in the alternative and consequently there is no question of the decree being one and indivisible nor does the principle of conflicting decrees apply to such a case.