SAJWAR KHAN Vs. GAJE SINGH

JUDGEMENT

(1.) The present civil misc. appeal has been filed under Sec. 104 read with Order 43 Rule 1 of the Code of Civil Procedure, 1908 ('CPC') assailing the order passed by learned District Judge, Merta in Civil Misc. Application No. 91/2011 whereby the application under Order 9 Rule 13 of CPC, filed by the appellant/applicant has been dismissed. The appellant has also prayed for allowing his application under Order 9 Rule 13 as well as his application for condonation. It is also prayed that the cost of the appeal and other damages be awarded from the respondents to the appellant/applicant. Certain other ancillary relief(s) have also been sought by the appellant/applicant.

(2.) Briefly stated, the facts of the case are that the respondent/plaintiff filed a suit (Annex.1) for recovery of Rs.1,18,000.00 along with interest against the appellant/defendant on account of the loan taken by the appellant and the promisory note signed thereto. After the learned Trial Court issued summons to the appellant/defendant to the suit, the appellant preferred an application under Order 7 Rule 11 of the CPC which was allowed on 14/12/2000 (Annex.2) and the suit (Annex.1) filed by the respondent/plaintiff stood abated. Thereafter, the respondent/plaintiff filed an application for restoration of the suit on 30/10/2004, which came to be allowed by the learned Trial Court vide on the same day, without issuing summons to the appellant/applicant.

(3.) Furthermore, learned Trial Court directed the respondent/plaintiff to file two sets of summons for service upon the appellant/applicant. The service of summons was not complete since the summons were returned on 4/12/2004, therefore, the learned Trial Court on 18/12/2004 again ordered for filing summons. Subsequently, on 7/1/2005, the summons were returned with a note that the appellant/defendant along with his family had started residing in Ajmer. Thus, the learned Trial Court directed the respondent/plaintiff to file summons to the fresh address of the respondent/plaintiff. The respondent/plaintiff, thereafter filed an application under Order 5 Rule 20 of the CPC for substituting service by publishing the summons in the news paper.