MAGAN LAL SHARMA Vs. SHRI RAM DEV SINGH

JUDGEMENT

(1.) Aggrieved by the order dated 18.05.2010 passed by the Additional District & Sessions Judge, No. 5, Jaipur City, Jaipur, whereby the learned Judge has dismissed the application filed under Order 9 Rule 13 read with Section 151 Code of Civil Procedure, the Appellant has approached this Court.

(2.) The brief facts of the case are that on 02.12.2008, the Plaintiff-non-Appellant filed a suit for recovery of Rs. 2,00,000/- along with interest before the District & Sessions Court, Jaipur City, Jaipur. Since the Appellant -Defendant did not appear, vide order dated 01.09.2009, after taking presumption regarding service of notice, the Court proceeded ex-parte against the Appellant. The said suit has been decreed ex-parte, vide judgment and decree dated 29.09.2009. The Plaintiff-Respondent filed execution application on 02.01.2010 before the learned trial Court for execution of judgment and decree dated 29.09.2009. On 02.01.2010, the attachment orders have been passed in relation to the pension account No. 3020828019. The Appellant filed an application under Order 9 Rule 13 Code of Civil Procedure for setting aside the ex-parte judgment and decree dated 29.09.2009. However, the learned Court below, vide order dated 18.05.2010, has dismissed the said application. Hence, this appeal before this Court.

(3.) Mr. Jitendra Mitrucka, the learned Counsel for the Appellant, has vehemently contended that the notice through a registered post was not received by the Appellant. But it was, in fact, received by one Mr. Bhagchand. Therefore, it cannot be concluded that the notices were duly served upon the Appellant. Moreover, although the daily newspaper "Navjyoti" is published throughout the State and is widely read in Jaipur, yet the fact remains that the notice published in the said newspaper was not known to the Appellant. Therefore, even the service of notice through publication in daily newspaper cannot be deemed to be sufficient. Lastly before ordering a substitute service, the learned Court should have ensured that the procedure as prescribed under Order 5 Rule 17 is followed. In fact, the notice had not been affixed on the residential premises of the Appellant, and the learned trial Court has failed to examine the process server. Therefore, the service of notice cannot be deemed to be complete. In order to buttress this contention, the learned Counsel has relied upon the cases of Chuki Devi (Smt.) and Ors. v. Laxminarayan, 2010 2 DNJ 718, and Banshi Lal v. Mahendra Kumar, 2010 1 DNJ 23.