Jarnel Singh and Another vs Kailashchand and Others

Bela M. Trivedi, J.—The present appeal is directed against the order dated 26.10.13 passed by the Addl. District Judge No. 1, Alwar (hereinafter referred to as ''the court below'') in Civil Misc. Application No. 20/05, whereby the court below has rejected the application of the appellants-defendants filed under Order IX Rule 13 of CPC seeking setting aside of the ex-parte decree dated 6.3.03 passed in the Civil Suit No. 14/02. In the instant case it appears that the original plaintiff Shri Kailash Nath the father of the plaintiffs had filed the suit against the appellants-defendants seeking specific performance of the agreement dated 1.6.99. In the said suit, the appellants-defendants were sought to be served by affixing and by registered post, however, both notices returned with the endorsement of refused, and therefore an ex-parte decree came to be passed against them. The appellants thereafter submitted an application under Order IX Rule 13 of CPC on 5.5.05 on the ground that they came to know about the ex-parte decree only on the service of notice to them in the executive proceedings. It also appears that pending the said application under Order IX Rule 13 of CPC, the original respondent-plaintiff Kailash Chand had also expired. The court below thereafter dismissed the said application under Order IX Rule 13 of CPC, on the ground of being barred by limitation. The court below also did not grant the application of the appellant for bringing on record the legal heirs of the original respondent-plaintiff vide the impugned order.

It is submitted by the learned counsel Mr. Gajendra Singh Rathore for the appellants that the appellants were not properly served in the suit and they came to know about the ex-parte decree only when the notice came to be served in the execution proceedings. He also submitted that personal service of summons in ordinary course is a rule and substituted service is an exception. The learned counsel has also relied upon the judgments of this court in the case of Harbhajan Singh and Another Vs. L.Rs. of Gardhara Singh, , in the case of Kamlesh @ Kamla Vs. Mukesh Yadav 2012 (2) DNJ (Raj.) 1157, in the case of Chuki Devi (Smt.) and Others Vs. Laxminarayan, , in the case of Amar Singh Vs. Rajkumar 2012 (3) DNJ (Raj.) 1305 and in he case of Ramjilal Vs. Natholi Ram Saini and Another in support of his submissions.

Having regard to the submissions made by the learned counsel for the appellants and to the impugned order passed by the trial court, it transpires that when the appellants were sought to be served in the suit by ordinary course, they were not found and their wife and son respectively refused to accept the summons, therefore they were sought to be served by affixing as well as by registered post. The said summons issued through the registered post also came back with the endorsement of refusal. Hence the ex-parte proceedings were initiated against them. The court below had also not believed the story of the appellants that they came to know about the ex-parte decree when they were served with the notice dated 1.2.05 in the execution proceedings. The court below had called for the file of the execution proceedings and found that the appellants had deliberately concealed the material facts from the court. The appellants also did not bring the legal heirs of the original plaintiff the deceased Kailash Chand for about three years, though the information about his death was placed on record on 9.12.09. The court below after having verified the record and recording the conduct of the appellants had rightly rejected the application of the appellants under Order IX Rule 13. The decisions relied upon by the learned counsel for the appellants have no application to the facts of the present case. The impugned order passed by the court below being just and proper, this court is not inclined to interfere with the same. Hence, the appeal is dismissed.