GAGAN JENA Vs. RAMA CHANDRA PARIDA

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioners challenging the order dated 23.7.2011 passed by the learned Additional District Judge, Jajpur by which he confirmed the order dated 5.9.2000 passed by the learned Civil Judge (Senior Division) Jajpur in rejecting the application filed by the present petitioners under Order 9, Rule 13 C.P.C. to set aside the ex parte decree passed in T.S. No. 96 of 1997 of the learned Civil Judge (Senior Division), Jajpur.

(2.) TO appreciate the case of the petitioners, it is required to state the facts in gist involved in the case which are as follows:

(3.) AN objection was filed to the said Misc. Case by the opp. party no. 1 disputing the assertions made therein and, inter alia, stating that notice was duly served on the petitioners and despite knowledge, they did not contest the suit and their claim is barred by time. One witness from each of the side was examined before the learned Civil Judge (Senior Division), Jajpur, who thereafter hearing the parties rejected the application by his order dated 6.8.2007. The learned Civil Judge, from the records, found that, an order was passed that summons as against the present petitioners is held sufficient. It was also admitted by the petitioners that originally though the suit was filed before the learned Civil Judge (Junior Division), Jajpur, but subsequently the suit was brought before the learned Civil Judge (Senior Division), Jajpur after the amendment. The learned court also found the service of summons on the petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept the service of summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, and the name and address of the persons ( if any) by whom the house was identified and in whose presence, the copy was affixed.