JANAK DULARI Vs. RADHEY SHYAM

JUDGEMENT

(1.) Heard Sri A. K. Dwivedi holding brief of Sri S. N. Pandey, the learned counsel for the petitioner and Sri R. B. Maurya, the learned counsel for the caveator. A suit for specific performance was decreed exparte, therefore, notices were issued to the defendant to execute the sale deed. At this stage the petitioner came to know about the exparte order and filed an application under Order 9 Rule 13 for setting aside the decree. It has also come on record that the petitioner subsequently also filed a suit for cancellation of the decree which is pending consideration. The decree holder filed his objection and, the trial court, after considering the matter, rejected the application under Order 9 Rule 13. The petitioner, being aggrieved by the aforesaid order, filed an appeal which was also rejected. Consequently, the writ petition. The learned counsel for the petitioner submitted that the petitioner had no knowledge about the pendency of the suit and that he was never served with the summons and therefore, the exparte decree should be set aside. The learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in the case of Sushil Kumar Sabharwal vs. Gurpreet Singh and others, 2002 AIR, SCW 2533, wherein the Court held that the service of summons was not sufficient. The learned counsel for the petitioner further submitted that the judgment of the trial court indicates that no issue was framed and therefore, the said judgment stood vitiated in view of the specific provisions of Order 20 Rule 5 and Order 8 Rule 10 of the C. P. C. and thus, on this ground the exparte decree should also be set aside. Having heard the learned counsel for the petitioner and having perused the record of the writ petition, this Court finds that the submission raised lacks merit. The trial court as well as the appellate court has given a categorical finding that no effort was made by the defendant to disapprove her signature/thumb impression on the summons which had been served upon her and that no effort was made to summon and cross-examine the postman. In the light of this specific finding that the summons were duly served and the signatures appended on the summons was not denied by the petitioner, the court below was justified in holding that the petitioner was duly served with the summons and had knowledge about the pendency of the suit. The court below further fortified its finding by the fact that when the trial court issued notice again to the petitioner in the execution proceedings it was sent at the same address which was duly received by the petitioner. The court below, therefore, concluded that the petitioner had sufficient knowledge and deliberately chose not to appear before the trial court and on this short ground the application under Order 9 Rule 13 filed by the petitioner was rejected. In my opinion, the said findings based on findings of fact which has not been rebutted before this Court and which has not been repelled by any argument raised by the petitioner. Consequently, this Court is not inclined to interfere in the impugned order. The submissions of the learned counsel for the petitioner, that the decree passed by the trial court was void in view of the provisions of Order 8 Rule 10 and Order 20 Rule 5 is patently erroneous. Such grounds were never raised by the petitioner in her application under Order 9 Rule 13 of the C. P. C. nor could such ground be allowed to be raised in the Writ Court. Even otherwise when the defendant did not appear and did not file any written statement, consequently, no occasion arose for the trial court to frame an issue and therefore, the court proceeded to decide the matter under Order 8 Rule 10 of the C. P. C. In my opinion, there is no illegality in the order passed by the trial court decreeing the suit. In view of the aforesaid, I do not find any error in the impugned order. The writ petition is dismissed summarily. .