JAGDISH Vs. PREMLATA RAI

JUDGEMENT

(1.) This revision petition is directed against the order dt. 30th May 1988 passed by the learned Addl. Munsiff No. 1, Jaipur City, Jaipur, in Execution Petition No. 43 / 81.

(2.) Brief facts of the case are that the plaintiff-decree holder non-petitioner instituted a suit. In the title of the suit the name of the court has not been mentioned. However it was presented before the Additional Munsiff and Judicial Magistrate No. 2, Jaipur City, Jaipur on 23-3-81. On 25-3-81 learned District Judge, Jaipur City, Jaipur, passed the order that the case referred to in the list pending with the Additional Munsiff No. 2, Jaipur City, should be transferred to Additional Munsif and Judicial Magistrate No. 1, Jaipur City. In pursuance of the said order this case was also transferred in the Court of Additional Munsiff No. 1, Jaipur City, Jaipur. The Reader of the Court signed the summons which was to be issued on 28th April 1981 and the date was fixed on 4th May 1981. Summonses were entered in the process register at Sl. No. 446 on 30-4-81. Without the order of the Court Dasti summonses were given to the plaintiff for getting the summons served on the defendant after taking the assistance of the process server. It will not be out of place here to mention that the Process Server has reported that he proceeded with the plaintiff to get the summons served on the defendant and went to the shop of the defendant. He has further reported that the defendant refused to accept the summons as such, he pasted the same in the presence of the witnesses. It will not be out of place here to mention that the summonses are issued in Form No. 2 provided under Order 5 Rules 1 and 5. On the back of the summons there is a prescribed Form. In the same form it is stated that how the Process Server will report. Two modes have been prescribed differently. Under one mode the Process Server has to state whether he knows the party to whom the notice, is to be served or not. The second mode is that he has to report as to who has identified that person whom the notice is to be served is the same or not. On 4th May 1981 the Process Server submitted report to the Court that defendant has declined to accept the summons. Ex parte proceedings were initiated on 4th May 1981. On 18-5-81 Court directed the petitioner that he should produce the evidence on 21-5-81. On 21st May defendant instead of producing the evidence submitted the affidavit of Lal Bihari Singh and Bal Mukund Gupta. He has also produced some documents. The date was fixed for arguments and on 1-8-81, Court passed the ex parte decree against the present petitioner and directed that the petitioner should be ejected from the shop of which he is a tenant within a period of two months; decree for the payment of arrears of rent was also passed.

(3.) Mr. Lodha appearing on behalf of the petitioner submitted that the judgment and the decree passed by the Court below should be treated as non-existent/non est. He submits that any decree passed by the Court having no jurisdiction to try the case is a nullity. The second contention of Mr. Lodha is that the decree is also a nullity as there is no material on record on the basis of which the Court could have passed the decree. To elaborate this position Mr. Lodha submitted that the affidavits filed by the non-petitioner plaintiff cannot be admitted in evidence and they cannot be read as evidence.