BHAWANI PRASAD Vs. BHANWAR SINGH

JUDGEMENT

(1.) This appeal is directed against the order dated 4.9.93 passed by the learned district Judge, Udaipur, whereby defendant appellant's application filed under Order 9. Rule 13 C.P.C. for setting aside the exparte decree dated 23.3.91 was dismissed.

(2.) Briefly the facts necessary for the disposal of this appeal are that the plaintiff-respondent filed a suit for specific performance of agreement to sale dated 5.7.89 against the appellant in the lower Court. The District Judge by his order date 18/7/90 directed that under Order 5 Rule 19-A CPC for simultaneous issuance of summons for service against the defendant-appellant by post in addition to the summons for service under Order 5, Rule 9 CPC. It appears that on the next date i.e. 25.8.90, the summons sent through both the modes were not received in the Court and, as such 25.9.90 was fixed. On that day, acknowledgment receipt was received in the Court, but the Presiding Officer was on leave. However, on the aforementioned two dates, the defendant did not appear. On 12.11.90 also, the defendant was not present. Therefore, order for proceeding exparte against him was passed. The District Judge alter recording the evidence by his judgment dated 23.3.91 passed an exparte decree against the appellant. On 1.7.91, the appellant filed an application under Order 9 Rule 13 CPC alleging that no summon either by post or through due course was received by him; that the acknowledgment receipt did not bear his signatures and that since the said acknowledgment receipt does not bear any postal seal, the alleged service on him through registered post appears to be suspicious. He also pleaded that no summons after service through the Court was receive in the lower Court, therefore, service of summons on him was insufficient and the order dated 12.11.90 for proceeding exparte against him was improper and unjustified. He further pleaded that he did not deliberately remain absent that he came to know about the impugned exparte decree for the first time through telegram dt. 23.3.91 sent to him by the respondent and, as such, the exparte decree be set aside.

(3.) The respondent in his reply reiterated that the summons alongwith copies of the plaint were sent to the appellant through registered post A/D vide postal receipt No. 2467 dated 13.8.90 Ex. A/1 as well as in due course, the summons sent through post was duly received by the appellant as is evident from the acknowledgment receipt Ex.A/3, received in the Court. In support of his application appellant Bhawani' Prasad examined himself as AW 1 and produced his son AW 2 Arun Kumar and AW 3 Ratanlal Postman. In rebuttal respondent NAW 1 Bhanwar Singh was examined. The learned District Judge after scanning analysing and evaluating the evidence adduced by the parties by his impugned order dt. 4.9.93 dismissed appellant's application for setting aside the exparte decree. Hence this appeal.