SUBRATI KHAN Vs. CHUTTAN KHAN

JUDGEMENT

(1.) Instant appeal has been preferred by the appellantdefendant (for short 'the defendant') against the order dtd. 1/2/2018 passed by Additional District Judge No.1, Jaipur District, Jaipur (hereinafter referred to as 'the trial court') in Misc. Application No.6/2015 titled as Subrati Khan Vs. Chuttan Khan, by which the application filed by the defendant under Order 9 Rule 13 read with Sec. 151 CPC has been dismissed.

(2.) Learned counsel for the defendant submits that the respondent-plaintiff (for short 'the plaintiff') had filed a suit for specific performance of the contract against the defendant on 15/9/2006. Summons were issued by the trial court on 25/2/2006 but the Process Server made a wrong remark that the defendant denied to accept the summon, so endorsement was made in presence of witnesses namely; Karim Khan and Shahid Khan. Learned counsel for the defendant also submits that summon was not served upon the defendant. Process Server wrongly reported that the defendant had denied to take it in the presence of witnesses Shahid Khan and Karim Khan. Learned counsel for the defendant also submits that defendant and his family members are facing the trial of criminal case as plaintiff had taken signature on the blank paper and prepared a forged agreement on it. Learned counsel for the defendant also submits that defendant and his wife were not present at the house on 22/9/2006. Learned counsel for the defendant also submits that plaintiff had not produced witnesses Shahid Khan and Karim Khan in his evidence. Learned counsel for the defendant also submits that the trial court had not complied the provisions of Order 5 Rule 17 and 19 of the Civil Procedure Code while passing the ex-parte judgment and decree against the defendant. Learned counsel for the defendant also submits that defendant is of rural background. So, he wrongly admitted the fact that he was in the village on 22/9/2006. Learned counsel for the defendant also submits that defendant came to know about the ex-parte judgment and decree dtd. 17/12/2007 on 4/9/2015. So, he had filed an application for setting aside the ex-parte judgment and decree on 5/10/2015 but the trial court wrongly dismissed the application filed by the defendant. So, order of the trial court be set aside.

(3.) Learned counsel for the defendant has placed reliance upon the following judgments : (1) Jagdish Prasad Swami Vs. Ramji Lal Joshi in S.B. Civil Misc. Appeal No.2508/2006 decided on 19/12/2006; (2) Sushil Kumar Sabharwal Vs. Gurpreet Singh & Ors. in Civil Appeal No.5111/2002 decided on 23/4/2002; (3) M/s Neerja Realtors Pvt. Ltd. Vs. Janglu (Dead) through LR in Civil Appeal No.71/2018 (Arising out of SLP(C) No.5847/2017) decided on 29/1/2018; (4) Pratap Vs. Hari Singh in Civil Misc. Appeal No.1417/2014 decided on 20/9/2017 and (5) State of U.P. Vs. Krishna Master & Ors. in Criminal Appeal No.1180/2004 decided on 3/8/2010.