NAWAL KISHORE BHAGERIA Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) THIS petition has been filed against the order dated 16th April, 2012 passed by the Additional District Judge, No.7, Jaipur Metropolitan, Jaipur in Civil Misc. Appeal No. 26/2012, wherein the learned Appellate Court has upheld an order dated 10th January, 2012 passed by the Additional Civil Judge (Jr. Division) No.2, Jaipur Metropolitan, Jaipur dismissing the application under Order IX Rule 13 read with Section 151 of CPC qua its ex -parte decree dated 7th August, 1996 as filed by the petitioner.

(2.) THE facts of the case are that the respondent no.3 -plaintiff Smt. Shashi Prabha Tiwadi (hereinafter plaintiff) laid a suit for eviction on 24th November, 1995 against the petitioner -defendant Nawal Kishore Bhageria (hereinafter defendant) on four grounds based on (i) reasonable and bona fide necessity, (ii) availability of alternate accommodation with the defendant, (iii) non -user of the tenanted premises by the defendant and (iv) comparative hardship in favour of the plaintiff. Summons for defendants were issued on 24th January, 1996. These summons were however served on 25th January, 1996 on the daughter -in -law of the defendant Nawal Kishore Bhageria namely Anju/Anjula in terms of the provisions of Order V Rule 15 of CPC. However, on the file of the trial court, proof of service of notice was taken on 15th February, 1996, whereupon none having appeared in spite of service of summons, ex -parte proceedings were drawn against the defendant. Thereafter, the suit for eviction was proceeded with, in the course whereof, the plaintiff moved an application under Order VI Rule 17 of CPC seeking to add the ground of material alteration. The application for amendment was allowed on 25th April, 1996. The matter, thereafter was taken up from time to time by the trial court and finally on 7th August, 1996, an ex -parte decree came to be passed against the defendant on the ground of reasonable and bona fide necessity of the landlord. Other grounds agitated by the plaintiff in the suit such as availability of alternate accommodation with the defendant, non -user of the tenanted premises by the defendant, comparative hardship in favour of the plaintiff and material alteration were found wanting on evidence and hence, unproved.

(3.) THE defendant, thereupon moved an application before the court of Civil Judge (Jr. Division) No.2, Jaipur Metropolitan, Jaipur under Order IX Rule 13 read with Section 151 of CPC for setting aside the ex -parte decree dated 7th August, 1996. The ground was that summons in the suit were not duly served on him consequent to which he could not appear to defend the suit for eviction. The case in support of the application aforesaid set up by the defendant was that the purported service on his daughter -in -law allegedly staying with him and stated to be available at the tenanted premises C -64, Sarojani Marg, C -Scheme, Jaipur on 25th January, 1996 was collusive and fraudulent - the Process Server recording the factum of service of the summons on the defendant's daughter -in -law being wholly false in view of the fact that the defendant's daughter -in -law was away from Jaipur for the whole of January, 1996 and at her parental home in Muzaffer Nagar during the period. It was also stated that even otherwise the purported service of the summons was vitiated in view of the fact that no service has been effected on the defendant on his second address recorded in the plaint as Village Pasoond, District Rajsamand. It was thus, prayed that the ex -parte decree dated 7th August, 1996 be set aside and the suit for eviction before the trial court be restored to its original number to be re -tried after the defendant being giving an opportunity of defending the case.