PRAKASH CHANDER Vs. SUNDER BAI

JUDGEMENT

(1.) This revision is directed against the order of the District Judge, Udaipur, dated 12-9-78 whereby the order of the Civil Judge, Udaipur, dated 10-1-78 was upheld and the defendant-petitioner's application for setting aside the ex parte decree was dismissed.

(2.) The facts leading to the present revision petition may briefly be stated as under: The plaintiffs Arjundas and Smt. Sun deri Bai instituted a suit for arrears of rent and ejectment against the tenantdefendant Prakash Chandra on 4-11-76 on the grounds of personal necessity, sub-letting and default. After registration of the case, summons was ordered to be issued for 10-1-77. On 10-1-77 fresh summons was ordered to be issued for 21-2-77, as the earlier summonses did not return. Summons was issued at the Kankarauli address of the defendant through court. On 21-2-77 summons returned unserved with the endorsement that the defendant was not available at his given address and is at Udaipur. The plaintiffs submitted an application the summons may be issued through registered post, whereupon the court ordered issue of summons through registered post as well as through court for 12-4-77. On 12-4-77, it appears, the summons sent through court did not return and it returned after the date but the summons sent through registered post returned back with an endorsement of refusal on it. The learned Civil Judge thereupon ordered to proceed ex parte under Order 9, Rule 6, C.P.C. and 29-477 was fixed for ex parte evidence. The ex parte order was passed in the following terms:-- ..(VERNACULAR MATTER OMMITED).. in english On 29-4-77 after recording ex parte evidence, the plaintiff's suit was decreed.

(3.) On 2nd of May, 1977, the defendant submitted an application under Order 9, Rule 13, C.P.C., for setting aside the ex parte decree alleging that he came to know of the decree on 30th April, 1977. It was alleged that he did not receive any summons of the suit. Neither he was personally served for 12-4-77 nor he received any summons through registered post. It was also stated that no postman offered him any registered letter nor he refused any registered letter. He cannot say as to how the postman has written the endorsement of refusal on the registered letter. The defendant filed his own affidavit in support of the application.