JAIPUR UDYOG LTD. Vs. HAJI ALI MOHMAMMED

JUDGEMENT

(1.) IN this case it is an -admitted fact that the summons was sent by post and it was received in the registered office of the corporation by the Receipt -clerk who ordinarily received the dak addressed to the corporation. The defendant appellant's witness Parmeshwarlal Ajmera has admitted in paragraph 1 of his statement that the summons received in the office of the corporation was put up before him on 5.5.78 and he was informed that the case is fixed on 9.5.78. On perusal of the summons it is apparent that the date has been written in Hindi while the body of the summons is in English. It appears that there was a misreading about the date as the same was written in Hindi digit in between the body of summons printed in English. But the same was received in the office of the corporation by an authorised agent -Receipt -clerk, dealing with the letters addressed to the corporation hence the service would be deemed to be proper. It is different matter that because of the mention of Hindi digit in the body of summons written in English there may have been some bonafide confusion about the date of hearing. However, the defendant had the knowledge of the suit and, therefore, this contention of the learned counsel for the appellant cannot be accepted that the service was not proper.

(2.) LEARNED counsel for the appellant has, thereafter submitted that 5.5.78 could not be taken to be an effective date of hearing as the Reader was not competent to fix the date of hearing in the absence of the Presiding Judge. .

(3.) I am in complete agreement with the view taken by brother Justice R.C. Lahoti and brother Justice S.K. Dubey in the cases reported above. It is an admitted fact that the Presiding Judge was on leave on 1.5.78. It is not known as to on what date learned Presiding Judge resumed duty. The Court -reader was not competent to fix the date of hearing. He was entitled only to adjourn the case simply and, therefore, it was a case of simple adjournment for 5.5.1978. It was incumbent upon the learned Presiding Judge to fix the next date of hearing in the matter. Instead of doing so, learned Presiding Judge accepted that date to be a date of hearing and proceeded ex parte (It appears that the ex parte evidence was recorded on the same day and ex parte decree was also passed on the same day). Thus, the decree passed on a day which is not date of hearing of the case, cannot be sustained.