OSHO VISION LIMITED Vs. NEBULAL

JUDGEMENT

(1.) FEELING aggrieved by the order dated 19.11.2005, passed by learned First Additional District Judge, Raisen, whereby the application under Order 9 Rule 13 C.P.C. filed on behalf of defendant -applicant has been allowed, this revision application has been filed by the plaintiff under Section 115 C.P.C.

(2.) THE facts in nut shell are that a suit for injunction and declaration was filed by the plaintiffs -applicants, which was decreed in exparte since the defendant -respondent, who was served, did not appear in the court. Thereafter an application under Order 9 Rule 13 C.P.C. was submitted by the defendant -respondent in the court below on 31.08.2004 stating the facts therein that he was not served for the date of hearing on 09.02.2004. In the application it has also been stated that he was not served with summons of the civil suit and therefore, he was not having any knowledge about the passing of the exparte decree. In the application, it has also been propounded that only on 28.08.2004, in pursuance to the exparte decree, a notice for mutation was received from the court of Tahsildar, when the present respondent perused the record of the Tahsildar, it came into his knowledge that exparte decree has been passed against him on 09.02.2004. Hence, claiming the date of knowledge to be 28.8.2004, the application to set aside the exparte decree was submitted on 31.08.2004.

(3.) THE averments made in the application were refuted by the present applicants in their reply. According to their stand, there was personal service upon the defendant, since the acknowledgment due receipt bears his signature. Hence, it was prayed in the reply that application under Order 9 Rule 13 C.P.C. be dismissed.