DHRUWA NEELKANT Vs. KRISHNA RAMCHANDRA SHASTRI

JUDGEMENT

(1.) This revision application has been filed against an order passed by the Registrar Small Causes Court, Nagpur dated 6-8-1973 setting aside the ex parte decree passed against non-applicant Krishan Ramchandra Shastri in Civil Suit No. 1454 of 1972 dated 14-11-1972.

(2.) It seems from the record that the applicant-plaintiff filed a suit against the defendant for recovery of an amount of Rs. 100/- on the allegation that he unauthorisedly removed certain bricks belonging to the plaintiff. I am informed that the suit was filed on 24-7-1972 and a summons was offered to the defendant on 8-81972. it seems from the record that in the plaint the defendant was described as an employee in M. E. S. residing at Dharaskar building in Ramdaspeth, Nagpur. The defendant did not accept this summons, as, according to him, the description given in the summons was wrong as he was not an employee of the M. E. S. as mentioned in the summons. It seems that the service was held to be good by the Small Causes Court and the ex parte decree was passed against him on 2-11-1972. According to the defendant Krishna Ramchandra, he came to know about this ex parte decree for the first time on 13-3-1973 and thereafter he filed an application for setting aside the said ex parte decree. In the application he contended that the summons issued to him was not properly issued or served upon him, he being a person governed by the provisions of the Indian Soldiers (Litigation) Act, 1925, the summons ought to have been served upon him by following the procedure prescribed by Order 5, Rule 28, Code of Civil Procedure. This has not been done. He further contended that on the relevant date, namely, on the date of hearing, he was serving under special conditions, and therefore, no proceedings could have been taken against him in the said civil suit. During the course of hearing he filed a certificate issued by his Commanding Officer, namely, Sardulsing, certifying that since 1st February, 1966, the applicant was serving on the permanent and industrial staff of the Unit and was serving under special conditions during November 1972, and still continues to do so. In support of his case the non-applicant Krishan examined himself, whereas nobody was examined on behalf of the applicant.

(3.) After appreciating the evidence adduced before him the learned Registrar of the Small Cause Court came to the conclusion that the summons was not properly issued and served upon the defendant. He also came to the conclusion that the defendant was a soldier serving under special conditions, and therefore, the ex parte decree passed against him was liable to be set aside. Accordingly by his order dated 6-8-1973 he set aside the said ex parte decree and the suit was directed to proceed on merits. As already observed, it is this order which is challenged in this revision application.