VIJAY KISHORE DUBEY Vs. KAILASH CHANDRA

JUDGEMENT

(1.) THE present revision petition has been filed under section 115 of CPC challenging the order dated 31.5.2007 passed by the Addl. Civil Judge (JD) Bundi (hereinafter referred to as the "trial court") in Civil Misc. Application No. 24/2000, whereby the trial court has set aside the exparte decree dated 12.8.1998 passed in favour of the petitioner -plaintiff in Civil Suit No. 244/1995. It has been submitted by learned counsel Mr. S.S. Hora for the petitioner that the respondent no. 1 and his father Shri Ramcharan, who were the original defendants in the suit, though were duly served, did not file their appearance and therefore, an exparte decree was passed in favour of the petitioner plaintiff. According to him, the said defendants were also aware about the other revenue proceedings pending between the parties in which the reference was made of the Civil Suit and also the exparte decree passed in the suit, however the respondents filed the application for setting aside the exparte decree under Order IX Rule 13 of CPC on frivolous grounds. According to him, the order passed by the trial court being without jurisdiction, the same deserves to be set aside.

(2.) HOWEVER , the learned counsel Mr. Amit Jindal for the respondents submitted that apart from the fact that the defendants were not duly served with the summons in the suit, the defendant Shri Ramcharan had already expired during the pendency of the suit and therefore the decree passed against the dead person was a nullity. According to him, the order passed by the trial court being just and proper, this court should not interfere in the limited jurisdiction under section 115 of CPC.

(3.) HAVING considered the submissions made by learned counsel for the parties and to the documents on record more particularly the impugned order passed by the trial court, it appears that the trial court was not satisfied about the service of summons to the concerned defendants in the suit. The trial court also has observed that the defendant no. 2 Shri Ramcharan had already expired during the pendency of the suit prior to passing of exparte decree and therefore, also the decree was liable to be set aside. There is some substance in the submission made by learned counsel Mr. Hora for the petitioner that the respondents were aware of the pendency of the suit and also the passing of exparte decree in the suit, however he has failed to point out as to how the summons were duly served on the concerned defendants in the suit. From the evidence of the process server, examined by the petitioner in the application, it appears that he had not complied with the provisions contained in Rule 17 of Order V of CPC, by not submitting the report signed by him as regards the due service. It is also not in dispute that the defendant no. 2 Shri Ramcharan had expired before passing of the exparte decree. Hence, the trial court has rightly considering the facts and circumstances of the case, set aside the exparte decree, which order does not call for any interference of this court. In view of the above, the revision petition being devoid of merits deserves to be dismissed and is accordingly dismissed. However, considering the facts and circumstances of the case, the trial court is directed to expedite the hearing of the suit.