KHACHAR SINGH Vs. D J MATHURA

JUDGEMENT

(1.) D. K. Seth, J. Original Suit No. 77 of 1990 was decreed ex-parte by the learned Civil Judge, Mathura on 28th January, 1992. The petitioner-defendant in the said suit filed an application under Order IX, Rule 13 of the Code of Civil Procedure. The said application was registered as Misc. Case No. 71 of 1992. By an order dated 22nd May, 1999, the learned Civil Judge (Senior Division), Mathura had dis missed the said Misc. Case. Appeal No. 102 of 1999 was preferred against the same. By an order dated 9th August, 1999, the learned District Judge, Mathura had dismissed the said appeal affirming the order dated 22nd May, 1999. These orders have since been challenged in this writ petition.

(2.) MR. Janardan Sahai, learned coun sel for the petitioner had assailed the said order on the ground that both the Court below have found that summons were never served on the petitioner defendant. But on the ground that the defendant had knowledge about the suit, the application under Order IX, Rule 13 was rejected. According to him, the Court having recorded a finding that summon were not served only on the basis of presumption, it could not have arrived at such a con clusion, which on the face of the record are perverse and as such, the said orders should be set aside.

(3.) IN the present case, the Court did not accept the service under the Rule 17 or under Rule 19-A of Order V of the Code as sufficient. Therefore, it cannot be said that there was proper service. This Court had also held so.