RAJENDRA MAHADIK Vs. DEVENDRA MAHADIK

JUDGEMENT

(1.) The petitioner/defendant No.3 is aggrieved by order dated 18.2.2014 passed in Case No. 73A/2009 Civil Suit by Fourth Additional District Judge, Gwalior, whereby his application under Order 9 Rule 7 CPC dated 3.1.2014 is rejected.

(2.) The plaintiff filed a suit for partition and permanent injunction (Annexure P-2) on 1.4.2009. The notices were issued to the other side. The acknowledgments of notices issued by the court for defendant No.3 were not received back by the court.

(3.) The court below on 22.4.2009 passed a detailed order recording that an effort was made to serve the petitioner/ defendant No.3 by sending notice by registered post. The envelope is received back with the endorsement that "at the time of distribution, the petitioner was not found". The court below after perusal of that endorsement opined that the petitioner's shop is situated just in front of the court where he can be served in 15 minutes. Resultantly, the court below directed the District Nazir to serve the defendant No.3 and submit its report at 3.00 p.m. The matter was taken up at 3.00 p.m. On perusal of the report of the process server, the court below opined that the special summon sent through process server must be treated as served. Thus, the court below proceeded against the petitioner/defendant No.3 ex parte. The court below considered the report of the process server (Annexure P/4) while passing the aforesaid order. The petitioner preferred application under Order 9 Rule 7 CPC on 3.1.2014. It is urged that the notices were never served on him. He overheard the discussion between plaintiff and other defendants and then came to know that some matter is pending in the court. After enquiring about the matter, he came to know that the instant civil suit is pending and he has been treated as served. Since the petitioner is not served and he was not aware about the proceedings, the order be recalled and he be permitted to put forth his case.