SHANKER LAL Vs. RAM SINGH AND ANOTHER

JUDGEMENT

(1.) This appeal is directed against an order dismissing application for setting aside of decree in a suit.

(2.) Respondent No. 2 Smt. Ganga Devi is daughter of appellant Shanker Lal. Appellant Shanker Lal is resident of village of Tehsil Firozabad, District Agra. Respondent No. 1 Ram Singh filed original suit No. 572 of 1984 in the Court of Civil Judge, Agra for permanent injunction in respect of a piece of land. It is now not disputed that appellant Shanker Lal was served with summons of the said suit by registered A.D. post on 25-2-1985 requiring him to file written statement on 4th March, 1985. From 4th March to 10th March, 1985 court remained closed on account of elections and reopened on 11th March, 1985. On the reopening of the Court when written statement of defendant appellant Shanker Lal was not filed, learned lower Court Judge passed order for proceeding with the suit under Order 8, Rule 5, C.P.C., and fixed 27th March, 1985 for that purpose. On the date so fixed defendant appellant did not appear and the learned lower court decreed* the suit on plaint allegations.

(3.) On 18th April, 1985 defendant appellant filed application bearing the date of 10th April, 1985 for setting aside of decree dated 27th March, 1985. It was accompanied by affidavit dated 11th March, 1985 and sworn on the same date. In this affidavit defendant appellant mentioned that he enquired from an advocate at Ferozabad and he was given to understand that another date would be fixed and for next date another summon would be issued. Defendant appellant further swore in the affidavit that he is an aged man suffering from asthma and has not been keeping good health with the result that soon after the election and holidays from 4-3-85 to 10-3-85 he could not come to Agra and enquire about the next date fixed or collect any other information regarding the progress of the suit. He came to know about the decree only on the date of swearing of the affidavit when he got enquiries made from his Advocate Sri U.B. Jain and after inspection of the file that the suit had been decreed on 27th March, 1985. Lastly defendant appellant swore in the affidavit that summons were not duly served on him because he received only a summons without the copy of the plaint and that too was issued for a holiday.