Court No. - 69
Case :- S.C.C. REVISION No. - 86 of 2021 Revisionist :- Rajesh Kumar Agrawal Opposite Party :- Pyare Mohan Mathur And 3 Others Counsel for Revisionist :- Pankaj Agarwal Counsel for Opposite Party :- Akanksha Gaur
Hon'ble Shekhar Kumar Yadav,J.
Heard Sri Pankaj Agarwal, learned counsel for the revisionist and Sri Akansha Gaur, learned counsel for the opposite parties.
The instant SCC Revision has been preferred to set aside the impugned order dated 04.09.2021 passed by Additional Sessions Judge, Court No.3, Aligarh in SCC Suit No.16 of 2018 (Pyare Mohan Mathur vs. Bishan Dayal Agrawal and others) whereby application 45-ga filed by defendant-revisionist has been dismissed.
Learned counsel for the revisionist has submitted that however, mischievously and maliciously S.S.C. Suit No. 16 of 2018 was instituted by the opposite party no. 1 arraying Bishan Dayal Agrawal (the father of the revisionist) as defendant no. 1 and arraying applicant herein as defendant seeking their eviction on the ground of default and material alteration. He has further submitted that the suit so instituted on 30.05.2018 in which notices were issued to the defendant as well as applicant who was defendant no. 2 in the suit fixing 28.08.2018 for appearance and for filing written statement. He has submitted that plaintiff/opposite party herein who is a clever litigant does not want the summon of the instant suit to be served upon the defendant and it is with the said intention the step to serve defendant through registered post was never taken, rather the step to serve through process server were taken. He has submitted that plaintiff/opposite party succeeded in influencing the process server who without visiting manipulated the service and made an endorsement regarding "refusal of summons" by the defendants. He has submitted that as such no summons was ever served upon the applicant nor to his father. He has submitted that however, court below without taking note of the fact that no step to serve defendant through registered post was ever taken by the plaintiff and whatever step taken to serve defendant is through process server which, is a secondary mode of service and court below relying upon the report of process server an endorsement on the backside of the summon which was marked as paper no. 14-Ga/1 to 14-Ga/4 deemed the service upon defendant to be sufficient fixing 17.09.2018 for final argument. He has submitted that in pursuance to the order dated 28.08.2018 holding the service upon defendant to be sufficient court below vide its order dated 14.11.2018 directed to proceed ex-parte against the defendant. Learned counsel for the revisionist has lastly submitted that even the ex-parte order is not recalled, the defendant/petitioner would suffer irreparable loss. In this regard defendant/respondents have filed application under section 45-Ga for recalling the ex-parte order dated 14.11.2018 which was dismissed on 04.09.2021.
Ms. Akansha Gaur, learned counsel for opposite parties has submitted that in revision averments of the revisionist is wrong, whereas the notice has been served upon him. She has further submitted that defendant/respondent is the son of Bishan Dayal Agrawal and they are residing in the same accommodation and in same business and father of the respondents has appeared and filed written statement. Learned counsel for the opposite parties has further submitted that notice has been served through registered post to the defendants/respondents which has been refused.
I have considered the submissions advanced by learned counsel for the parties.
The parties are agreed, if the matter is expedited within specific time framed by the court.
Considering the facts and circumstances of the case as well as submissions made, but without prejudice to the merits of the case, the instant revision is allowed and the impugned order dated 14.11.2018 passed by learned IIIrd Additional District & Sessions Judge, Aligarh, in SCC Suit No. 16 of 2018 (Pyare Mohan Mathur Vs. Bishan Dayal Agrawal & Others) is hereby set aside. The court below is directed to decide the SCC Suit No. 16 of 2018 (Pyare Mohan Mathur Vs. Bishan Dayal Agrawal & Others) expeditiously, within a period of six months from the date of presentation of a copy of this order, without granting unnecessary adjournment to either of the parties, if there is no other legal impediment. It is made clear that if the adjournment is sought by either of the parties, the court below shall impose heavy cost upon the parties.
Order Date :- 29.10.2021 Vikram