ORDER :

1. Petitioner has filed this petition under Article 227 of the Constitution of India challenging the order dated 01.07.2021, passed in Miscellaneous Civil Appeal No. 9 of 2021, whereby learned 4th Additional District Judge, Durg, District – Durg dismissed the appeal filed under Order 43 (1)(d) of C.P.C.

2. Facts relevant for disposal of this petition are that respondent No.1/plaintiff filed a civil suit for declaration of title and permanent injunction as well as damages on the ground mentioned therein. Petitioner was impleaded as defendant No.2 in civil suit. Upon filing of civil suit, learned trial Court issued notice to the defendants including petitioner. Notice sent to petitioner/defendant No.2 was served upon wife of defendant/petitioner and service report was enclosed in the records. Learned trial Court proceeded exparte against defendant No.2/petitioner and after recording of evidence of plaintiff, passed an ex-parte judgment and decree against defendants therein including petitioner/defendant No.2.

3. Petitioner/defendant No.2 filed an application under Order 9 Rule 13 of C.P.C. for setting-aside the ex-parte judgment and decree primarily on the grounds that there was no proper service of notice as the notice sent by learned Court was not served upon defendant No.2 and further pleaded that the plaintiff/respondent No.1 was aware of the correct address of petitioner because petitioner is residing near the house of respondent No.1/plaintiff but in cause title of suit, the house number was not mentioned and further it is erroneously mentioned as resident of near Shiv Temple, Vaishali Nagar, Bhilai. Petitioner is not residing at Vaishali Nagar but is residing at Shanti Nagar, Bhilai. Nonmentioning of the correct address is with ill will. Learned trial Court issued notice on the application under Order 9 Rule 13 of C.P.C.. Respondent No.1/plaintiff caused her appearance, submitted reply to the application under Order 9 Rule 13 of C.P.C. denying the pleading of non-service of notice upon defendant No.2/applicant. Learned trial Court while considering the application under Order 9 Rule 13 of C.P.C., documents placed on record as also the reply submitted by respondent No.1/ plaintiff, dismissed the application under Order 9 Rule 13 of C.P.C. vide order dated 16.02.2021 observing that notice was served upon wife of petitioner, who is residing jointly and the service report bears signature of the wife and arrived at a conclusion that there was proper service of notice. Order rejecting the application under Order 9 Rule 13 was put to challenge in an appeal filed under Order 43 Rule 1 (d) of C.P.C. before the Appellate Court. Learned Appellate Court also recorded finding that notice was served upon wife of defendant No.2/petitioner, who is residing jointly with him and held that there was proper service of notice and dismissed the appeal vide impugned judgment dated 01.07.2021 against which this present petition is filed.

4. Learned counsel for petitioner submits that petitioner has taken very specific plea in the application under Order 9 Rule 13 of C.P.C. that respondent No.1 was well aware of the correct address of petitioner/defendant No.2. However, in the plaint correct address of petitioner with house number is not mentioned but it is mentioned R/o. Vaishali Nagar, near Shiv Temple, Bhilai. In the notice, the same address was mentioned, however, the service of notice upon petitioner as per service report submitted by process server is the service of notice at House No. 135, the service report is submitted after obtaining signature from some other person. He contended that it was pre-planned for not serving the summons of suit upon defendant No.2/petitioner. Statement of process server is not recorded. Learned Court below only considered that notice was rightly served upon petitioner/defendant No.2 by process server, however have not taken into consideration that in the pleadings under Order 9 Rule 13, the service report