BAIJNATH MISHRILAL KACHHI Vs. HARISHANKER S/O MISHRILAL

JUDGEMENT

(1.) THIS appeal is directed against the order dated 12 -2 -1997 in M.J.C. No, 22/1994, by Second Additional District Judge, Bilaspur, dismissing the application of the appellant under Order 9, Rule 13 read with section 151, Civil Procedure Code, for setting aside ex parte judgment and decree.

(2.) UNDISPUTEDLY , the plaintiff/respondent No. 1 Harishankar filed a suit registered as Civil Suit No. 11 -A. 1992, against the Defendant No. 1/appellant and Defendants/respondents No. 2 to 4 for partition, possession, etc. It appears from the record of the said Civil Suit that on 10 -7 -1992, the plaintiff/respondent No. 1 was permitted to sue as an indigent person and the summons to the defendants for settlement of issues were directed to be issued, and the case was fixed for 14 -8 -1992. The order sheet dated 14 -8 -1992 in the suit discloses that the defendants were absent on that day. It was reported that Defendants Nos. 2 and 4 were duly served with summons; while defendants No. 1 and 3 had refused to receive summons. In view of the absence of the defendants, the trial Court ordered that the case shall proceed against them ex parte. After recording evidence, judgment was delivered in the suit on 9 -7 - 1993.

(3.) THE said application was resisted by plaintiff/respondent No. 1 Harishankar. He denied the averments made in the above application. According to him, the process server had attempted service of summons which was refused by the appellant. Therefore, the service of summons was made by affixture of a copy of the summons on the house of the appellant. The report of the process server was accordingly appended. The trial Court therefore justifiably proceeded ex parte against the Defendant No. 1, Baijnath.