ABBU BAKAR Vs. DEEN DAYAL

JUDGEMENT

(1.) This application under Order 9 Rule 13, C.P.C. has been filed by the applicant Abbu Bakar and Abdul Kayum for setting aside of the judgment and decree passed in S.B. Civil Regular First Appeal No. 59/1998, by which the appeal of the plaintiff- respondent Deen Dayal was allowed and this Court decreed the suit for specific performance of the contract in favour of the respondent-plaintiff.

(2.) The facts of the case are that the plaintiff-respondent filed suit for specific performance of the contract dated 23.11.1993 by which, according to the plaintiff-Defendant No. 1 Harjot Kanwar agreed to sell a plot No. 102 situated at village Suthla, Chopasani Road, Jodhpur, in Hinglaj Nagar for a consideration of Rs. 90,000/- and the plaintiff paid Rs. 5100/- to defendant Harjot Kanwar and an agreement was executed between the parties. Therefore, the plaintiff filed the suit for specific performance of the contract against Defendant No. 1 alone. From the written statement filed by Defendant No. 1, the plaintiff came to know that the suit property has been sold to Defendant Nos. 2 and 3 (applicants) by registered sale-deed dated 19.2.1994. The plaintiff, therefore, impleaded subsequent purchasers in the suit as Defendant Nos. 2 and 3. The trial Court issued summons of the suit to Defendant Nos. 2 and 3. There is serious dispute for the address as well as service of summons of the suit upon the defendant. Admittedly the summons of suit were not served personally upon the Defendant Nos. 2 and 3. Since defendant remained absent before the trial Court, therefore ex parte order was passed against Defendant Nos. 2 and 3. The suit was contested by the Defendant No. 1 alone. However, the trial Court even then dismissed the suit of the plaintiff-respondent vide judgment and decree dated 29.9.1997.

(3.) An appeal was preferred by the plaintiff-respondent before this Court which was registered as S.B. Civil Regular First Appeal No. 59/1998. In the appeal, show-cause notices were issued to respondents by order dated 6.3.1998. These notices were for final disposal at admission stage and were made returnable within three weeks. The notices were submitted by the plaintiff-respondent in the appeal for the Respondents. Respondent No. 1 appeared through his Counsel but notices of Respondent Nos. 2 and 3 (Defendant Nos. 2 and 3) were not received back, therefore, the Court ordered on 21.4.1998 to await notices. Thereafter notice of Respondents No. 2 and 3 received unserved, upon which on 20.5.1998, this Court ordered to issued fresh notices to Respondent Nos. 2 and 3 (Defendant Nos. 2 and 3) by ordinary course as well as by registered post on correct addresses. It appears that notices with fresh addresses for sending by registered post or by ordinary process were not submitted by the appellant and the appellant without even making second attempt to serve the respondents, submitted an application under Order 5 Rule 20, CPC, supported by an affidavit on 26.5.1998. In that application, the appellant stated that despite various efforts, the notices of Respondent Nos. 2 and 3 have not been served. Respondent Nos. 2 and 3 are intentionally avoiding service of the summon because they are having the knowledge of this appeal. It is also submitted that Respondent Nos. 2 and 3 also remained absent before the trial Court despite service of summons. It is also submitted that because of avoiding service by Respondent Nos. 2 and 3, the appeal is being lingered on and ultimately, the appellant prayed that the appellant may be permitted to serve Respondent Nos. 2 and 3 by substituted service by publication of notice in newspaper.