PRATAP Vs. HARI SINGH

JUDGEMENT

(1.) The instant appeal has been filed by the appellant for setting aside the orders dated 25.03.2014 and 06.10.2009 passed by the trial court.

(2.) The brief facts of the case are that on 13.05.2009, the plaintiff-respondents filed a suit against the defendant-appellant for specific performance of an agreement to sell dated 06.07.2007 said to have been executed by the defendant for a consideration of Rs. 8,05,000/- per bigha regarding his agriculture land bearing khasra No. 100 measuring 2 bighas 14 biswas situated in village Sheelgaon Tehsil, Mundawar having his shares therein and received Rs. 1,00,000/- Lac as advance sale consideration and receipt in token thereof signed by him in presence of witnesses and attested by Notary Public. The summons of said suit were issued to the defendant. The learned trial Court in the absence of the appellant, on 16.07.2009 proceeded ex parte. The plaintiff examined himself and exhibited documents with three other witnesses. The learned trial court vide decree and judgment dated 06.10.2009 decreed the suit ex-parte against the appellant.

(3.) After coming to know the judgment and decree dated 06.10.2009 passed by the trial Court, the appellant moved an application on 20.08.2010 before trial Court under Order 9, Rule 13 CPC for setting aside ex-parte decree and judgment dated 06.10.2009 with the averments that he was never served with the summons of the suit, nor ever he refused to accept the same. He was never offered summons by the Process Server nor the notices along with copy of the plaint were affixed on the house in the presence of the witnesses and he never refused to accept the same in presence of witnesses. The report made by the process server was forged and collusive and, therefore the ex-parte proceedings taken against him were illegal. The appellant further stated in the application that on 17.08.2010, the plaintiff decree holder informed his son Rajoo that he had all done through the court process in the case against the appellant and then the appellant enquired about the matter through the counsel and came to the knowledge that the plaintiffs have filed a civil suit having forged signature on the agreement or receipt, which were not tallying with his real signature, inasmuch as the signature of appellant on agreement receipt were different. Lastly, in the application, the appellant prayed for setting aside the ex-parte decree passed by the trial Court.