1. Petitioner herein is the plaintiff in original suit No.725 of 2010 (Smt. Rekha Vs. Preetam Singh) which is pending before the learned Civil Judge (Senior Division) Saharanpur, wherein the petitioner/plaintiff has prayed for specific performance of an alleged agreement and to execute a sale deed of the suit land, in favour of the petitioner/plaintiff by the respondent/defendant.
2. It has been alleged that the respondent/defendant had not appeared, despite the service in the above mentioned original suit. Therefore, the learned Civil Judge (Senior Division) Saharanpur, vide order dated 4.1.2012, passed ex-parte decree in favour of the petitioner/plaintiff and against the respondent/defendant. The defendant filed an application under Order 9 Rule 30 of C.P.C. for setting aside the decree passed ex-parte against him, which was finally allowed vide order dated 24.07.2018 passed by learned Civil Judge (Senior Division) Saharanpur, on the ground that the petitioner/plaintiff had wrongly mentioned the address of the respondent/defendant and the service was wrongly treated to be complete only on the basis of alleged refusal.
3. The petitioner/plaintiff being aggrieved by the order dated 24.07.2018 preferred a Civil Revision bearing No.40 of 2018 before the Additional District Judge Saharanpur. The said revision was dismissed by the order dated 8.8.2019. The learned Judge hold that the service upon the respondent/defendant could not be treated as conclusive because the address given by the petitioner/plaintiff was not correct or sufficient for the purpose of service.
4. Petitioner/plaintiff being aggrieved by the order dated 8.8.2019 and 24.7.2018 has preferred the present petition under Article 227 of the Constitution.
5. Shri A.K.S. Bais learned counsel for the petitioner/plaintiff in support of petitioner's case has submitted that the address of the respondent/defendant as mentioned in the alleged agreement in question was sufficient for the purpose of service and the mark of refusal mentioned on the service was rightly considered to be sufficient for the purpose of service by the learned trial court. Learned counsel for the petitioner further submitted that respondent/defendant had full knowledge of the notice of the suit and despite that he opted not to appear, therefore, the learned trial court rightly passed an ex-parte decree against the respondent/defendant. Therefore, there was no illegality in the order of ex-parte decree. The reasons given by learned trial court for setting aside the ex-parte decree were contrary to the record. Therefore, the learned counsel for the petitioner/plaintiff prayed that this petition be allowed and the original order of ex-parte be restored.
6. Heard learned counsel for the petitioner/plaintiff and perused the record. This petition is finally heard at the stage of admission only.
7. Order IX, Rule 6 of the Civil Procedure Code provides the procedure that is to be adopted when on the first date of hearing of the suit only the plaintiff appears and the defendant does not appear despite the summons being duly served on the defendant, or, summons being duly served on the defendant but not within sufficient time, or, when summons were not duly served. Under Order IX, Rule 6 of the Code, the defendant can be proceeded against ex parte provided summon were duly served upon him within sufficient time.
8. It is well settled that while deciding, whether there was sufficient cause or not under Order 9 Rule 13 of C.P.C., the Court must do substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing substantial justice. It is also notable that in the present case, ex-parte decree was passed on 9.1.2012 and as soon the respondent/defendant came to know about the fact of ex-parte decree, an application was moved on his behalf along with an application under Section 5 of the Indian Limitation Act, 1908. The reason for treating the service sufficient was that despite the 30 days, the registered post had not been returned back. However, the service treated as sufficient on the said ground was rightly found to be not sufficient for the purpose of service as the address of the respondent/defendant mentioned in the suit was not correct by the court below.
9. In the present matter the learned trial court vide order dated 4.1.2012 has followed the procedure prescribed under Order 9 Rule 6 of C.P.C. and passed the ex-parte decree in favour of the petitioner/plaintiff and against the respondent/defendant. The said decree was passed on the ground that summons were duly served. Thereafter, respondent/defendant had approached the learned trial court by way of filling application under Order 9 Rule 13 of C.P.C. for setting aside the ex-parte decree, passed against the respondent/defendant and placed the facts that the service was never effected on him, as the address given by the petitioner/plaintiff was not correct. The learned trial court considered the submission and found that there was sufficient cause for non-appearance of the respondent/defendant and therefore, with cost of Rs.3,000/- the order of ex-parte decree dated 4.1.2012 was recalled. In the revision the learned District Judge had not found any illegality in the order dated 24.7.2018. Finding on the question of sufficient ground for setting aside the ex-parte decree was considered and suffice to say that it being a pure question of fact and the same does not call any interference by this Court, a finding on such question is binding on this Court.
10. Therefore, I find no merit in this petition, accordingly, dismissed.
Order Date :- 29.11.2019 A. Dewal [Saurabh Shyam Shamshery,J.]