SANTANU DAS Vs. KALPANA HAZARIKA

JUDGEMENT

(1.) This is an application under Sec. 115 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the order dtd. 7/2/2020 passed by the learned Civil Judge No.2, Kamrup (M) Guwahati in Misc. Appeal No.09/2014 whereby the order dtd. 19/3/2014 passed in Misc.(J) Case No.384/2013 by the learned Munsiff No.3, Kamrup(M) Guwahati was set aside.

(2.) The brief facts which led to the filing of the instant proceeding is that the petitioners herein had filed a suit being Title Suit No.263/2010 seeking eviction of the defendant from the tenanted premises on the ground that the defendant failed to pay the rent for the tenanted premises from August, 2009. In the said suit, upon summons being issued, the process server went to the address mentioned in the summons, but did not find the defendant. Thereupon the process server met the son of the defendant, but he refused to accept the summons and accordingly the process server affixed the summons at the door of the premises of the defendant in presence of a witness.

(3.) Pursuant thereto, the process server submitted a report on 23/12/2011 along with an affidavit on 2/1/2012. On the basis of the said process server's report, the Court of the learned Munsiff No.3 Kamrup(M) Guwahati proceeded ex-parte against the defendant and passed the judgment and decree on 3/8/2012 in Title Suit No.263/2010. The defendant only coming to learn about the said judgment and decree on account of the Execution Proceedings initiated approached the learned Trial Court by filing an application under Order IX Rule 13 of the Code for setting aside the ex-parte judgment and decree on the ground that the summons were not duly served. The said application was registered and numbered as Petition No.2319/2013. Along with the said application, an application was filed under Sec. 5 of the Limitation Act, 1963 for condoning the delay of 345 days in preferring the application under Order IX Rule 13 of the Code. In respect to both the applications, the plaintiffs submitted written objections. The learned Trial Court vide order dtd. 19/3/2014 dismissed both the applications stating that the statements made by the defendant, who was the petitioner to the said applications were not tenable in law and in facts and were not supported by documents or evidence.