PARIMAL KUMAR GUHA Vs. SMT. SOVANA SINHA

JUDGEMENT

(1.) An application under Order 9, Rule 13 of the Code of Civil Procedure filed by the defendant in Title Suit No. 47 of 1981 was registered as Miscellaneous Case No. 73 of 1981 of the forth Court of the learned Subordinate Judge at Alipore. The said application having been heard on contest on evidence has been dismissed by the two Courts below concurrently and feeling aggrieved the defendant has preferred the present revisional application.

(2.) The suit was one for specific performance of a contract for sale. The suit was filed on June 16, 1981 on which date the Court directed issue of summons. Summons was issued both through the process server as also by registered post simultaneously and both of them were returned with a report of refusal on July 16, 1981. The Court did not accept service as satisfactory and directed the plaintiff to take steps by July 20, 1981 on which date the plaintiff filed an application under Order 5, Rule 20 of the Code which prayer was allowed and July 31, 1981 was fixed as the returnable date. On July 31, 1981 the Court accepted the return of service under Order 5, Rule 20 of the Code and fixed the suit for ex parte hearing on Aug. 11, 1981. The suit was heard ultimately on Sept. 2, 1981 ex parte and was decreed on Nov. 5, 1981. The application out of which the present revisional application arises was filed within 30 days from the date of the decree on Dec. 1, 1981. In the application the defendant made out case that the summons of the suit was never served upon him and that he had no knowledge of the suit at all material time. He further pleaded that one, Kunja Behari Sharma who happened to be present in the Court of the learned Subordinate Judge on Sept. 2, 1981 informed him of the suit on Nov. 6, 1981. He could not inform the petitioner about the suit earlier because he had to go his native place at Rajasthan because of his mother's illness where from he returned on Nov. 5, 1981. Having come to know about the suit on Nov. 7. 1981 he made enquiries through a lawyer and came to know about the particulars of the suit and the decree only on Nov. 7, 1981. Hence, he filed the application as he has suffered serious prejudice by the ex parte decree that was obtained against him.

(3.) This application was contested by the plaintiff-opposite party, who denied all the material allegations made in this application. According to the plaintiff the summons of the suit was duly served and that the defendant had every knowledge about the pending suit at all material times, but as the defendant had no defence to put forward he allowed the suit to be decreed ex parte only to make an application under Order 9, Rule 13 of the Code to delay the litigation.