MANAGING DIRECTOR Vs. NAKUL PAUL

JUDGEMENT

(1.) Heard Mr. GP Bhowmick, the learned senior counsel, assisted by Mr. GZ Ahmed, the learned counsel for the appellant and Mr. AK Purkayastha, the learned counsel for the respondent No.1 as well as Mr. P. Sundi, the learned counsel for the respondent No.2.

(2.) The appeal was heard on 09.11.2017 and 04.12.2017 and it has been substantially heard today also. In the proceeding of Money Suit No. 4/2002, the appellant herein is the defendant No.1, the respondent No.1 herein is the plaintiff and the respondent No.2 is the defendant No.2. The said Money Suit No.4/2002 was decreed by judgment dated 21.02.2009, passed by the learned Civil Judge, Sonitpur, Tezpur. In course of arguments, Mr. P. Sundi, the learned counsel for the respondent No.2 has pointed out that the respondent No.2 has filed his cross objection being C.O. No.13/2010. It is submitted that the ground for filing the cross objection is that no summons of the suit i.e. Money Suit No.4/2002 was ever served on the defendant No.2.

(3.) The said submission has resulted in thorough scrutiny of the trial court records. In the order dated 25.06.2002, it is recorded that the process on defendant No.2 was returned with a process server's report dated 25.06.2002 that the defendant No.2 could not be traced out on the address furnished by the plaintiff, who left to Delhi after completion of work. By the order dated 20.07.2002, the learned trial court had recorded that summons issued to the defendant No.2 was returned with a report stating that defendant was not found for which summons was required to be served in substituted manner. The learned trial court held that summons was not properly served and, as such, fresh summons were directed to be issued on defendants No.1 & 2. There is no order by the learned trial court that summons was served on defendant No.2. However, by the order dated 04.10.2002, the learned trial court has recorded that by Petition No.1926 supported by an affidavit, the learned counsel had prayed for some time for filing written statement. However, on perusal of the said Petition No.1926 (which is in page-111 of File-D of LCR), it is recorded that by the said petition, the defendant prays for filing vakalatnama. Therefore, as on 04.10.2002, the vakalatnama of defendant No.2 was not on record. On perusal of the trial court records, it does not show that vakalatnama of defendant No.2 was filed on record.