ABDUL HAMID Vs. NAGINA BEGUM

JUDGEMENT

(1.) THIS revision application under Section 115 C.P.C. has been filed by the plaintiffs-applicants against the order dated 13.01.2012 passed by the learned XIth Additional District Judge, Jabalpur in MCA No.19/2011, whereby the order dated 16.11.2011 passed by 13th Civil Judge Class I, Jabalpur in MJC No. 11/2008 has been set aside and the application under Order 9 Rule 13 C.P.C. filed on behalf of defendant-respondent has been allowed.

(2.) NO exhaustive statements of facts are required to be narrated for the purpose of disposal of this revision application. Suffice it to say that a suit on the relationship of landlord tenant has been filed by the plaintiffs- applicants against the defendant-applicants, which was decreed ex-parte on 14.05.2007. Thereafter, an application to set aside the ex-parte decree was submitted by the defendant-respondent, which was barred by time. The learned trial Court not only dismissed the application under Order 9 Rule 13 C.P.C. on merit as well as application under Section 5 of the Limitation Act. Respondent- applicant thereafter filed a misc. appeal, which was allowed by the first appellate court vide impugned order, thus in this manner, the revision application has been filed by the plaintiffs-applicants.

(3.) SHRI Amit Shrivastava, learned counsel appearing for the respondent-applicant argued in support of the impugned order and submitted that even if the allegations made against the applicant are taken to be true, since the notice of original suit was directed to be served upon the defendant-respondent, which according to the plaintiffs- applicants, she refused to obtain the same was for the date of appearance on 29.07.2006, but on this date, the presiding officer was on leave and therefore, it was incumbent upon the trial court to issue fresh notice to the defendant for the further date. The order to proceed exparte was passed later on on that date, the defendant was not noticed. Learned counsel further submits that if there was any refusal to obtain the summons by the defendant, looking to the Civil Court Rules, this fact should have been witnessed by the witnesses, but nothing has been done in this regard. On the other hand, it is revealed from the statement of the process server that the witnesses did not agree to sign upon the summons to evidence the factum of non-acceptance of the summon by the defendant-respondent. Learned counsel further submits that thereafter according to Civil Court Rules, the same ought to have been affixed upon the conspicuous part of the premises and admittedly this has not been done, therefore, the learned first appellate court rightly allowed the application under Order 9 Rule 13 C.P.C. filed behalf of respondent and set aside the exparte judgment and decree. In support of his contention, learned counsel has placed heavily reliance upon the decision of the Supreme Court in the case of Sushil Kumar Agrawal Vs. Gurpreet Singh and others AIR 2002 SC 2370.