JAGRITI SAHKARI AVAS SAMITI LIMITED vs ARUN KUMAR BHARGAVA

THIS is an appeal against order and judgment dated passed by the District Forum, Ghaziabad in Complaint Case No. 354/1994 and order dated passed by the same Tribunal in the same complaint case rejecting the application for setting aside the ex-parte judgment.

THE facts of the case, as it appear from the judgment of the learned District Forum, are that in 1985 the opposite party M/s. Jagriti Sahkari Avas Samiti Limited carried out residential plots and advertised for development of the same in Tehsil-Dadri, District Ghaziabad. THE name of the colony was "Shyam Vihar". THE complainant applied for membership of the society and thereafter deposited the entire price of the plot amounting to Rs. 23,000/- but till the date of filing of the complaint no plot was allotted and no possession was given. THEre is no plot available on this spot and it appears that the colony was also fictitious one and the complainant had claimed the refund of Rs. 23,693.09 together with 20% interest per annum. It is mentioned in the judgment that the opposite party was served notice, but none appeared from their side. The case was decreed ex-parte. Against this judgment this appeal has been filed.

It has also been alleged that when appellant received the copy of the judgment of the District Forum, he moved an application for setting aside the ex-parte order which was also dismissed vide order dated 14.3.1997. This appeal is also directed against that order.

WE have heard learned Counsel for both the parties. Alongwith the appeal, an application for condonation of delay in filing the appeal has also been moved. Counsel for the appellant had argued that no service of notice of the case was made on the appellant and hence the appellant could not appear and contest the case before the learned District Forum. According to the facts of the case, the complaint was filed in the year 1994. According to the appellant, copy of the judgment was served on the appellant by registered post on 20.9.1996. After obtaining a copy of the judgment, an application for setting aside the ex-parte judgment and order was moved on 25.9.1996 which was supported by an affidavit. This application was also dismissed on 14.3.1997. Copies of this judgment were also obtained on 14.3.1997 and the appeal was filed on 14.3.1997. In the application for condonation of delay in filing of appeal, these facts have been averred. They are supported by an affidavit. It has specifically been mentioned that no summons of the case was served on the appellant. In the application for condonation of delay also this fact was mentioned before the learned District Forum. The learned District Forum in its order has held that "Sahyogi" of the Forum had served the notice on the appellant, hence the contention of the appellant of not having received the notice cannot be accepted. With these indings, the application was dismissed.

ACCORDING to opposite party, the notices were actually served on appellant which fact, according to them, is proved by copy of the notice filed by them. A copy of notice in the complaint case is on record which goes to show that it was issued on 2.3.1994 and was served on 24.3.1994. It was received by someone whose name is not indicated on this notice. Note has also been made by process-server that a notice has been served on the appellant. The appellant has stated that nobody on his behalf has received this notice. There is no evidence on record to show that which person had actually gone to serve the notice on the appellant. An affidavit of hat person should have been filed. Even the name of the person who is alleged to have received the notice on behalf of applicant is not on record. Therefore, in view of absence of any evidence of the serving official to the fact that the notice was actually served in the office of the appellant, this fact cannot be accepted. The opposite party has failed to prove that the notice was actually served on the appellant. When no notice was served on the appellant, it can only be said that the appellant came to know of the judgment delivered by the learned District Forum on 24.9.1994 when he received a copy of the judgment. The appellant had received a copy of the judgment and thereafter applied for setting aside the judgment and order on 20.9.1994. When his application was rejected, a copy of the order was obtained and appeal was preferred within the period of limitation. As a matter of fact there is no counter affidavit on behalf of the opposite party to show that the notice was actually served on the appellant.

IT has further been argued that the period spent in setting aside ex-parte order cannot be excluded from the period of limitation. This question does not arise in the present case because the present appeal is also directed against the order of dismissal of the application for setting aside the ex-parte order and judgment. We have come to the conclusion that the District Forum was not justified, on the. facts of the case, to reject the application for setting aside the ex-parte order. The appellant has shown sufficient cause for not filing the appeal in time against the original order dated 13 September, 1996. Therefore, the application for condonation of delay would also be allowed even if there was delay of few days in filing the appeal against the order and judgment. Therefore, we come to the conclusion that the appeal is to be allowed and the order of dismissal is to be set aside. ORDER The appeal is allowed. The impugned orders dated 13.9.1996 and 4.3.1999 passed by the District Forum Ghaziabad are set aside. The parties are directed to appear before the District Forum, Ghaziabad on 16th of April, 1999. The learned District Forum will give an opportunity to both the parties and will thereafter decide the case on merit. The appellant, who is opposite party before the District Forum, shall file a written statement on the date of appearance. Let a copy of this order be sent to both the parties within 10 days and a copy of the judgment also be sent to the learned District Forum, Ghaziabad. Appeal allowed.