SUSHIL KUMAR MORE Vs. SHAIKH ASADUR RAHMAN

JUDGEMENT

(1.) The defendant no.2 has filed an application being G.A. (Com) No.3 of 2024 for condoning the delay of 605 days in preferring an application under Order IX, Rule 13 of the Code of Civil Procedure, 1908. The defendant no. 2 filed another application being G.A. (Com) No. 4 of 2024 praying for recalling/ setting aside Ex-Parte decree dtd. 22/11/2022 passed in C.S. No. 105 of 2018.

(2.) Mr. Soumabha Ghosh, Learned Counsel representing the defendant no. 2 submits that the defendant no. 2 was at no material point of time aware of the passing of ex parte decree passed by this Court dtd. 22/11/2022. He submits that upon being served with an affidavit- in-opposition to an application under Sec. 5 of the Limitation Act, 1963 filed in the appeal by the defendant no. 2, it came to know that a writ of summons along with the copy of the plaint was purportedly served upon the defendants on 8/7/2019.

(3.) Mr. Ghosh submits that the service report specifically states that neither postal acknowledgement receipt nor undelivered packets for the defendant nos. 1 and 2 was received. He submits that the report relied upon the tracking report which shows that writ of summons along with the copy of the plaint was allegedly served upon the defendant no. 2 on 8/7/2019. He submits that there is no conclusive proof that the defendant no. 2 received the plaint or writ of summons. He submits that the defendant no. 2 came to know about the dispute only on 20/6/2023 i.e. when the defendant no. 2 has engaged an Advocate and sought a copy of the plaint and the petition from the Advocates of the plaintiff.