NAVNEET SHAH Vs. MOOL CHAND

JUDGEMENT

(1.) The present appeal has been filed against the order dtd. 7/5/2022 passed by the District Judge, Jodhpur Metropolitan, Jodhpur in Civil Misc. Case No.50/2021 whereby the application under Order 9 Rule 13, CPC as filed on behalf of applicant-defendant No.1 was dismissed.

(2.) Vide the application, it was submitted on behalf of the applicant that the notice/summons in the suit were never served on him and therefore, he could not appear before the learned Trial Court on the date fixed for hearing. It was submitted that the plaintiff intentionally filed the wrong address of applicant-defendant No.1 whereas he did not reside on said address. On the said address i.e. A-2/20, GDDIDC Somnath Industrial Estate, Daman (U.T) a factory in the name of 'National Traders' was running whereas the factory of the applicant was situated/running at A-2/21 with the name of 'Apple Polymers'. The manager and the labourers of the applicant worked in the said factory i.e. 'Apple Polymers' and he himself had his business in the name of 'Popular Stores' at the address mentioned at Mumbai. Therefore, the notice as served by the plaintiff in the suit proceedings on the address at A-2/20 cannot be termed to be a proper service on applicant.

(3.) It was further submitted that even the report of the process server was to the effect that the applicant was not found on the said address. It is only when the notice in the execution proceedings was served on him that he came to know about the decree dtd. 2/9/2020. It was submitted that co-incidentally he was available at Daman on 2/1/2021, the date when the notice of the execution proceedings was delivered at 'National Traders' and the staff of 'National Traders' handed over the same to him. Soon after the said receipt, he applied for the certified copies of the relevant documents and on 27/1/2021, filed the application under Order 9 Rule 13, CPC along with application under Sec. 5 of the Limitation Act for condonation of delay.