MOHAN DHOBI Vs. KASTOORI DEVI

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree dated August 26, 1966 passed by Sri Madan Lal Gupta, III Additional Civil Judge, Agra allowing the appeal of the respondents after setting aside the decree of the trial Court.

(2.) THE defence respondent obtained an ex parte decree from Judge, Small Causes, Agra in suit No. 959 of 1962 for the recovery of some money as arrears of rent. He put that decree into execution and the plaintiff appellant was arrested. Thereafter the plaintiff filed suit giving rise to this appeal on the allegations that the plaintiff appellant was never a tenant of the defendant respondent and the decree obtained by the defendant res pondent was vitiated by fraud. Collusive and fictitious service was obtained against the plaintiff appellant on the summons of that case. On these allegations plaintiff wants a declaration that the aforesaid decree was void and ineffective against the plaintiff appellant. The suit was resisted by the defendant respondent by repudiating fraud. It was also pleaded that the decree obtained by the defendant respondent in the court of Judge, Small Causes, Agra stood as res judicata between the parties.

(3.) I have heard learned counsel for the appellant alone as the res pondent has not been represented in this court. After going through the record of the case I have come to the conclusion that the view taken by the court below is perverse and cannot be allowed to stand. The oral evidence produced by the parties consisted of the parties themselves. Mohan plaintiff appeared in the witness box and stated that no process server ever came to him and he was not served in the case No. 959 of 1962 at all. On the other hand Smt. Kastoori Devi res pondent stated that the plaintiff appellant was duly served in the case. The paper Exh. 1 is the copy of the report of the 'summons alleged to have been served on the plaintiff appellant in S.C.C. suit No. 959 of 1962. According to this report the process server reported that Mohan Lal appellant met him and the latter took up the summons and copy of the plaint but refused to sign the counter part of the summons. The above report is no service in law. Either the appellant had to be serv ed personally or if the appellant refused to sign the acknowledgment then under Order V, Rule 17 the proper course on the part of the pro cess server was to affix a copy of the summons on the outer door or on some conspicuous part of the house in which the plaintiff appellant originally resided or carried on business. This was not done. As a matter of fact as a prudent man the process server should not have parted with the summons and notices before obtaining signatures of the plaintiff appellant on the counter part.