Court No. - 26
Case :- S.C.C. REVISION No. - 55 of 2018 Revisionist :- Sarfaraj Opposite Party :- Shivrani Devi And Anr Counsel for Revisionist :- Vidya Prakash Singh Counsel for Opposite Party :- Anurag Sharma
Hon'ble Mrs. Sangeeta Chandra,J.
Heard Sri Anurag Sharma, learned counsel for the respondents and Sri Vidya Prakash Singh, learned counsel for the revisionist.
This petition has been filed challenging the order dated 15.2.2018 passed by the learned Additional District and Sessions Judge in Misc. Case No. 9 of 2016 by which the restoration application filed by the revisionist / applicant for restoring the case and setting aside the ex-parte judgment and order dated 8.1.2016 passed by the Judge Small Causes Court / Additional District Judge, Court No. 6, Ghaziabad in SCC Suit No. 34 of 2015 has been rejected.
Learned counsel for the revisionist has argued that the SCC Suit was transferred on 21.8.2015 by the District Judge to the Court concerned i.e. the Additional District Judge, Court No. 6, Ghaziabad and no notices were issued or served upon him as is required under General Rule (Civil) Rule 89, there is no recording of the Court concerned regarding sufficiency of service and the matter has proceeded ex-parte against him and has been decided on 8.1.2016. He therefore filed an application for recall of order which application has also been rejected by the impugned order. It is his case that for recording sufficiency of service after transfer of case to the learned Trial Court, the process server should have been examined.
A copy of the order sheet has been filed along with supplementary affidavit which shows that on 21.8.2015, the District Judge had transferred the SCC Suit to Additional District Judge, Court No. 6 for disposal. The file was received in the Court of Additional District Judge thereafter and the plaintiff was directed to take steps on 10.9.2015 both ways in seven days, the matter was fixed for 12.10.2015.
On 12.10.2015, the case was called out. The plaintiff's counsel was present, but the defendants were absent. It was found by the Court that the registry had not been returned, and therefore the matter was directed to be listed on 4.11.2015.
On 4.11.2015, when the matter was taken up, it has been recorded by the learned Trial Court that the plaintiff's counsel was present. He had filed an application under Order VIII, Rule 1 and the file of the case was examined and it was found on perusal of paper nos. 15-Ga(1) and 15-Ga(2) (summon) and the registry paper no. 18-Ga (20.7.2015), paper no. 18-Ga (summon) and paper no. 19-Ga (16.9.2015) that service was sufficient, but none had appeared on behalf of the defendant. The Court however gave one more opportunity to the defendant and directed the matter to be fixed for 21.11.2015.
On 21.11.2015, the Presiding Officer was on leave, therefore the matter was fixed for 14.4.2015, on which date again the defendant did not appear and the proceedings were taken up ex-parte thereafter.
In the affidavit filed in support of the application under Order IX, Rule 13, certain allegations were made with regard to service of summons not being properly done after transfer of case on the defendant and also that the defendant fell sick, and therefore could not appear. Both the grounds taken by the defendant were found to be untenable after examination of evidence by the learned Trial Court.
The learned Trial Court found that the summon that was initially issued was properly served on the defendant on 28.5.2015. After transfer also, the summons were issued and served on the defendant. With regard to his illness, it was found that the same was feigned as the defendant continued to appear in the regular Suit filed by him before the Civil Judge (Junior Division). He had also made a statement on 22.5.2015 under Order X, Rule 2 Civil Procedure Code. The affidavit was found to be incorrect and therefore the application under Order IX, Rule 13 was rejected.
On perusal of the order impugned, this Court finds no legal or factual infirmity therein. This Revision is therefore dismissed.
Order Date :- 30.5.2018 Arif