LEELA DHAR KALLA Vs. BHANWAR LAL

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 27.5.1997 passed by the learned Additional Civil Judge (J.D.) and Judicial Magistrate, Jodhpur setting aside ex -parte decree passed on 16.2.1990 in civil original suit No. 876/89 'Leeladhar v. Bhanwarlal for eviction from the disputed shop.

(2.) AN application for setting aside the said decree was filed under Order 9 Rule 13 C.P.C. by the defendant Bhanwarlal on 15th October, 1993 alleging that the summons of the suit were not duly served on him. He only came to know about the decree for the first time on 13th October, 1993 when the mob was standing in front of his shop. On enquiry being made, he came to know about the decree passed against him and the report made by the process server on the back of the summon. As per reply of the plaintiff, the defendant had knowledge of the filing of the suit as well as of passing of the decree. Therefore, the suit was rightly decreed ex -parte against him. The learned trial court recorded the evidence of both the parties and by order dated 27.5.1997, the ex -parte decree was set -aside and the case was restored to its original number. Hence, this revision.

(3.) IT was argued by the learned Counsel for the petitioner that after the defendant's refusal to accept the summons before two Motbirs, the summons were affixed on his shop, There is no reason to believe the report of the process server Pratap Singh, NAW No. 3, because the defendant had refused to sign on the summons and thereafter summons were affixed on the disputed shop as per report of the process server Pratap Singh. Therefore, it cannot be said that the summons were not duly served. It was further argued that even if there is an irregularity in service of summons, the Court is mandated in view of the amended proviso second appended to Rule 13 of Order 9 C.P.C. not to set -aside the decree, passed ex -parte, merely on the ground, if it is satisfied that the defendant had notice of the summons and had sufficient time to appear and answer the plaintiffs claim.