SMT. GOPALI SARKAR Vs. HIMANSHI AND ORS.

JUDGEMENT

(1.) AGGRIEVED by the order dated 19.01.2010, passed by the learned Additional District Judge, No. 6, Jaipur City, Jaipur, whereby the learned Judge has rejected the petitioner's application under Order 9 Rule 7 CPC, the petitioner has approached this Court.

(2.) BRIEFLY the facts of the case are that on 21.04.2008, the respondent -plaintiff, Smt. Himanshi, filed a suit through her next friend and natural guardian, Smt. Sudha Mehta, for rendition of account, for declaration of sale -deed dated 16.12.1995 and 02.03.1996 as voidable, and for compensation. In her plaint, she claimed that although she also had a share in the property in dispute, the defendant No. 1, Sh. Pradeep Sen, defendant No. 2, Sujata Das, and defendant No. 3, Smt. Gopali Sarkar (the petitioner before this Court), by executing the aforesaid two sale deeds, had sold the undivided, immovable property of Sh. Dhruvnath Sen to defendant No. 4, M/s Bohra Enterprises Pvt. Ltd. and defendant No. 5, M/s Anukampa Buildcon Pvt. Ltd. Therefore, she prayed that her share should be partitioned and defendant Nos. 1 to 5 should be directed to handover the physical possession of the property so partitioned in her favour. According to the petitioner, while defendant Nos. 1 & 2 had received summons issued by the court, she neither received the summons, nor refused to accept it. According to her, she was unaware of the proceeding of the suit. Therefore, she could not appear before the concerned court. Since the petitioner did not appear before the court, vide order dated 01.09.2008, the civil court decided to proceed ex -parte against her. Furthermore, according to her, she came to know about the pendency of the suit when she received a show -cause notice/summon of the application for appointment of receiver on 19.09.2009. Immediately, she spoke to her sister, Smt. Sujata Das, the defendant No. 2, who lived in Jaipur, about the pendency of the civil suit. She also came to know that the court was proceeding ex -parte against her. Therefore, she immediately filed an application under Order 9 Rule 7 CPC for setting aside the ex -parte proceedings. The respondent -plaintiff filed her reply. After hearing both the parties, vide order dated 19.01.2010, the learned court not only rejected the application, but also imposed a cost of Rs. 500/ - upon the petitioner. Hence, this petition before this Court.

(3.) ON the other hand, Mr. Shrey Gaharana, the learned counsel for the respondent No. 1, has contended that after 19.07.2008, the complete address of the petitioner was given. A new notice was sent to the correct address, at "B -228, Chitranjan Park, New Delhi". According to the envelope of the registered post dated 19.08.2008, the petitioner had clearly refused to accept the said registry. Thus, the petitioner cannot claim that the notice was not sent to the correct address. In order to buttress this contention, he has produced a copy of the registered letter and a copy of the back of the letter, which clearly indicates that there was refusal to accept the notice on 19.08.2008. According to the learned Counsel, this fact was also brought to the notice of the trial court. Secondly, even if the trial court has mentioned a wrong date for refusal, even if, it has mentioned the dated 24.05.2008, it would not obliterate the fact that the petitioner has refused to accept the notice on 19.08.2008. Therefore, the order dated 19.01.2010, passed much after the refusal on 19.08.2008, is clearly justified.