SHRI SUDARSHAN Vs. SATYANARAYAN (DECEASED)

JUDGEMENT

(1.) A challenge has been laid by the petitioner-defendant No.4 (hereafter 'the defendant No.4') to the order dated 30-7-2018 passed by the Civil Judge and Judicial Magistrate (First Division) Pushkar (Ajmer) dismissing his application under Order 9, Rule 7CPC for setting aside the ex-parte proceeding taken against him vide order dated 25-4-2005.

(2.) The facts of the case are that the respondent-plaintiffs (hereafter 'the plaintiffs') filed a suit for permanent injunction with regard to the suit property. Summons were issued by the trial court to the defendants including the defendant petitioner. From the record of the file of the court, the trial judge finding that the defendant No.4 having been served, yet failed to file appearance, made proceedings against him exparte on 25-4-2005.

(3.) It was alleged in the application by the defendant No.4 filed on 7-5-2018, that the process server in collusion with the plaintiffs made a false report on 23-4-2005 that he had refused to accept the summons, whereon the trial court being mislead vide order dated 25-4-2005 initiated ex-parte proceedings against him. The defendant No.4 stated that he came to know of the proceedings against him in the suit only on 2-5-2018 when the defendant No.2 Kunj Behari asked him for title documents of the suit property needed for his defence in the suit and informed him of also being a party therein. Thereafter on 7-5-2018 the application under Order 9, Rule 7 read with 151 CPC was moved for setting aside the exparte proceedings. That application has been unjustly dismissed by the trial court under its impugned order dated 30-7-2018,submitted the defendant No.4's counsel, without as much as addressing the moot issue of summons in the suit not having been served on the defendant No.4 as per the provision of Order 5, Rule 17 CPC and Order 5, Rule 19 CPC. Reliance has been placed on M/s. Neerja Realtors Pvt. Ltd. v. Janglu (Dead) Thr.LR [AIR 2018 SC 753] , Auto Cars v. Trimurti Cargo Movers Pvt. Ltd. [(2018)2 Civil Court Cases 428 (SC)] , Naresh Chandra Agarwal v. Bank of Baroda [AIR 2001 SC 1253] and SB Civil Miscellaneous Appeal No.1417/2014, Pratap v. Hari Singh, decided on 20-9-2017 . Hence this petition.