GOVIND SINGH Vs. MAN SINGH

JUDGEMENT

(1.) This Revision Petition has been preferred under S. 115, Civil Procedure Code, 1908 (for short 'the CPC') against the appellate order dated 7-2-96 passed by the Civil Judge (SD), Rajsamand in Civil Misc. Appeal No. 3/91 thereby setting aside the order dated 13-8-87 passed in Civil Misc. Case No. 10/87 by the then Munsif, Bhim in Civil Original Case No. 33/75.

(2.) Briefly stated, the facts relevant for disposal of this petition are that the plaintiff Udai Singh (since deceased), whose sons, widow and daughter are petitioners before this Court, brought a suit for pre-emption of the agricultural land which was sold by the defendant-non-petitioner Vijay Singh to the defendant-non-petitioners Man Singh and Keshar Singh who are real brothers and are residents of Village Sadaran, before the trial Court on 10-2-75. The summonses were accordingly issued to the defendant-non-petitioners for their appearance on 8-8-75. The summonses so issued to the defendant-non-petitioners were duly served on the date of hearing, i.e., 8-8-75. Man Singh and Vijay Singh did not appear before the trial Court whereas Keshar Singh, brother of Man Singh, appeared before the trial Court who contested the suit seriously. However, in absence of both Man Singh and Vijay Singh, ex parte proceedings were ordered to commence against them and after a full-fledged trial, it was on 27-4-78 that a decree as prayed for was passed in the suit. The defendant-non-petitioner Man Singh filed an application on 26-6-78 under O. 9, R. 13, CPC before the trial Court alleging that he was living at Ahmedabad whereat he was employed with the Gujarat Sports Club, Ahmedabad and he was at Ahmedabad on 10-6-75 when the process server has reported to have served the summons in the main suit on Man Singh and that he could not have been present in the village and hence there was no service on the defendant Man Singh nor did he ever have any knowledge about institution and pendency of the suit brought by Udai Singh. He also alleged that it was on 21-6-1978, for the first time, that on coming to his village, while working in his field, the son of Udai Singh Plaintiff informed about the ex parte decree having been obtained against him as well, and so it was requested that the ex parte decree may be set aside and instead he may be allowed to defend the suit.

(3.) However, the plaintiff Udai Singh refuted all these allegations of the application so moved by the defendant-non-petitioner Man Singh on the ground that it was on 10-6-75 that Man Singh was duly served with a summons personally as endorsed on the summons and, accordingly, there was due service of summons on Man Singh and, simultaneously, his brother Keshar Singh was also personally served with summons who had throughout appeared in the suit and contested the same and, therefore, there was a due service of summons on the defendant-non-petitioner Man Singh and that he had also, implicitly, knowledge of the pendency of the suit against him. The plaintiff also filed affidavit in support to the reply filed to the application of the defendant Man Singh.