SUNIL ENTERPRISES Vs. RAKESH BHASKER

JUDGEMENT

(1.) In this revision petition filed under Section 115 of the Code of Civil Procedure, the Petitioner has challenged order dated 3.3.2003 passed by the learned Senior Sub Judge, Shimla, whereby the Petitioner's application for setting aside ex parte proceedings against it filed under Order 9 Rule 7, Code of Civil Procedure was rejected and the trial Court ordered and directed that the suit may proceed and accordingly fixed 14.3.2003 as the date for arguments. When this revision petition was taken up for consideration today, learned Counsel appearing for Respondent No. 1 submitted that this revision has been rendered infructuous because during the pendency of the revision petition, the suit filed by Respondent No. 1 against the Petitioner has since been decreed ex-parte by the trial Court. Actually a perusal of the record of the trial Court does suggest that on 21.3.2003 the suit was decreed ex-parte by the trial Court.

(2.) Undoubtedly, because of the aforesaid intervening development (of the suit having been decreed in the meanwhile), the Petitioner's application under Order 9 Rule 7, Code of Civil Procedure does appear to have become infructuous but then post decree, the Petitioner has a right to file an application under Order 9 Rule 13, Code of Civil Procedure for setting aside the ex parte decree. Order 9 Rule 13 Code of Civil Procedure clearly stipulates that in any case in which the decree was passed ex parte against the Defendant he may apply to the Court which passed the decree for an order to set it aside. It is provided clearly therein that if the Court on receiving such an application for setting aside an ex parte decree is satisfied that the summons upon the Applicant-Defendant was not duly served or that he was prevented by any sufficient cause from appearing in the Court when the suit was called for hearing, the Court would make an order setting aside the decree as against the applicant-Defendant and shall appoint a day for proceeding with the suit.

(3.) I have gone through the impugned order dated 3.3.2003 as also the record of the trial Court. I have also perused the interlocutory order dated 12.10.2001, which was highlighted by the trial Court in the impugned order dated 3.3.2003. My considered opinion is that even at the stage of disposing of the application filed under Order 9 Rule 7, Code of Civil Procedure, the trial Court clearly appears to have misdirected itself in very heavily relying upon the alleged fact of Anil Mahajan having appeared on 12.10.2001 in the trial Court in response to the service allegedly effected upon the Petitioner and such appearance of Anil Mahajan as a representative of the Petitioner amounted to due and valid service upon the Petitioner. Whether Anil Mahajan did appear or some one else impersonating as Anil Mahajan appeared on 12.10.2001 was a very seriously disputed question of fact especially in the light of the additional fact that no documentary evidence was available on the record of the trial Court to establish, firstly that the Petitioner-Defendant was ever served and secondly that Anil Mahajan ever appeared on 12.10.2001. In the absence of such documentary evidence the possibility of some one else impersonating as Anil Mahajan could not be totally ruled out. That is one aspect of the matter. The other aspect, equally more important, is that when in a situation like the present one when there was a serious doubt about the service of Petitioner-Defendant and the Petitioner-Defendant was also seriously contesting the factual assertion of Anil Mahajan actually having appeared on 12.10.2001, the benefit of doubt should have been given to the Petitioner-Defendant and the trial Court should have erred on the side of caution by allowing the Petitioner's application because such a course of action in all likelihood, apart from protecting the interests of the Petitioner-Defendant would not have caused serious prejudice to the Respondent-Plaintiff. My view, therefore, is that the trial Court has committed an error in rejecting the Petitioner's application filed under Order 9 Rule 7, Code of Civil Procedure.