JAWARCHAND Vs. HEERAMANI

JUDGEMENT

(1.) ON perusal of the record and the summons (which has wrongly been kept in part - V of the file) ought to have been filed along -with the plaint after ex parte decree. It appears that there has been some interpolation in respect of date of report of the Process Server. The endorsement of Process Server shows that the summons could not be served as the date of appearance has expired. The order sheet of the trial Court dated 5.4.91 speaks that the notice was served. Thus, there is a variance in the endosement on the summons and the observation of the Court. Though this fact has not been enquired into by' the trial Judge, but there is a presumption that entries in the public documents are correct. If the summons is taken as it is it would show that there is no service on the defendant and thus the case of the defendant -Non applicant shall be covered in the first part of the Rule 13 of Order 9 C.P.C. If it is found that the summons on the defendant has not been served the Court is bound to set aside the ex parte decree. It is not a case where there has been irregularity in the service of summons as provided in the explanation to said rule. Thus, the question of knowledge of proceeding would not arise.

(2.) LEARNED counsel for the applicant has submitted that the defendant had notice of the hearing. It has been asserted by the plaintiff in reply to the application and has been stated on oath and it has also not been denied on oath by the defendant and, therefore, it ought to be accepted that the defendant had knowledge of the proceedings and the decree thereafter. Had it been a case of irregular service of summons, this argument of the learned counsel for the applicant could be accepted, but it is a case where defendant -Non applicant has satisfied the trial Court about the non -service of summons that is a finding of fact. The revisional Court shall not disturb the finding of fact unless it is perverse or based on no evidence. That is not the case here. The finding cannot be said to be perverse. The learned counsel for the applicant has referred to case reported in 1966 SC 1631 and submitted that the parties should not suffer for the mistake of the Court. I am in respectful agreement with the law enunciated therein. That was a case where there a miscalculation regarding the actual amount of money to be deposited by the decree -holder and the deposit was short by one rupee and, therefore, their Lordships have held that it was the mistake of the Court and the party should not suffer for it. It is not the case here. Learned counsel for the applicant, thereafter, submitted a case reported in 1989 MPRCJ 229 and submitted that the ex parte decree has wrongly been set aside. In the opinion of this Court the said case and the law enunciated therein does not help the applicant.

(3.) IN that case service was served on the defendant but the copy of plaint was not accompanied with the summons. That was a case of irregular service of summons and was fully covered in the explanation to said Rule 13 of 0.9. That is not the case here. As against it learned counsel for the defendant -Non -applicant has referred to a case reported in AIR 1973 SC 1096 and submitted that if the learned trial Judge in his discretion has set aside the decree it should not be interfered with by the revisional Court. Though the facts of the case are different, but this contention of the learned counsel for the defendant appears to be correct, that normally such decisions should not be interfered with. Learned counsel for the defendant -Non applicant has referred a case reported in AIR 1964 SC 497, but that has no bearing in this case. From the discussions above it is evident that the petitioner was successful in satisfying the Court that the summons were not duly served on her. Under these circumstances this is not a fit case for interference in revision. AIR 1966 SC 1631 and AIR 1964 SC 497 distinguished. AIR 1973 SC 1096 relied on.