Shripat Yadav vs Bujhu Singh Yadav

Ram Surat Ram (Maurya), J.—Heard Sri Nagendra Kumar Singh for the petitioner and Sri Sunil Kumar Srivastava for the opposite party.

This petition has been filed for setting aside the order of Civil Judge, (J.D.) dated 8.8.2014, by which the application under Order 9, Rule 13 CPC filed by the defendant for setting aside the judgment dated .8.2013, passed in O.S. No. 334/2012, has been allowed and the suit has been restored to its original number on the special cost of Rs. 3,000/- and the order of Additional District Judge dated 16.1.2016 dismissing the revision of the petitioner against the aforesaid order.

I have considered the arguments of counsel for the parties and examined the record. The Civil Judge has recorded a specific finding that out of four defendants, service on two defendants have been effected by affixation or presumption for not returning of the summons sent through registered post within time. Although it has been stated that two of the defendants, namely Kamlesh and Yadupati have accepted the service, but the signature of Yadupati in the summons as well as in the recall application were not tallied. So far as Kamlesh is concerned, he has also denied his signature. Thus, it has been found that there was no personal service and the court proceeded only on the basis of substituted service. On this finding, the ex parte judgment dated 2.8.2013 has been set aside and the suit has been restored to its original number. The revision filed by the petitioner has also been dismissed. Thus, the finding recorded that out of four defendants, there was no service upon the three defendants at all, could not be contradicted by the counsel for the petitioner.

Only on the basis of signature of Kamlesh on the summons, it has been stated that all the defendants had knowledge of the suit and had deliberately avoided to appear before the court below, as such, in view of IInd proviso of Order 9, Rule 13 CPC, the decree was not liable to be set aside. So far as signature of Kamlesh is concerned, he has denied and has stated that his signature has been manufactured on the summons. The contention of Kamlesh that his signature has been manufactured cannot be contradicted by the petitioner.

In such circumstances, no interference is required by this Court in exercise of jurisdiction under Article 227 of the Constitution. However, the defendants may appear before the court and file their written statement within six weeks from today and the court below will proceed to decide the suit expeditiously, without granting any unnecessary adjournment to either of the parties.

With the aforesaid observations, the petition is disposed of.