The absence of clear evidence of service of summons necessitates setting aside an ex parte decree, emphasizing the right to due process and the opportunity to contest claims.

JUDGMENT

Sanjeev Sachdeva, J. (ORAL)--The hearing was conducted through video conferencing.

2. Appellant impugns order dated 01.04.2021 whereby the application filed by the appellant under Order 9 Rule 13 Code of Civil Procedure (CPC for short) has been dismissed.

3. Subject suit was filed by the respondents for possession, permanent and mandatory injunction and for recovery of arrears of rent, mesne profits and damages.

4. It is contended in the suit that appellant is a tenant under the respondent at a rate of Rs.4000/- per month and despite vacation notice has failed to vacate the premises.

5. Learned counsel for the appellant/defendant submits that appellant is not a tenant in the property but is an owner of the property and the property was purchased by the husband of the appellant. It is submitted that respondents have fabricated the documents after the property was purchased by the appellant.

6. Further it is contended by learned counsel for the appellant that appellant was neither served with the summons of the suit nor was aware of the pendency of the suit. He submits that no opportunity of leading evidence was granted to the appellant to show that appellant was never served with the summons of the suit.

7. Impugned order dated 01.04.2021 holds that the application under Order 9 Rule 13 on the face of it is devoid of merits. Trial Court has held that initially the appellant stood served through her daughter- in-law and even an affidavit to the said effect was filed by the respondent plaintiff.

8. The Trial court records that the Court by its order dated 27.03.2017 directed fresh service on the appellant. Trial Court further records that appellant had even refused to accept/claim the process/summons as reported by the postman who had gone to deliver the same at the address of the appellant.

9. The Trial Court in the impugned order has recorded that the order sheet of the day reveals that one Ms. Jyoti was found at the given address who claimed herself to be the daughter of the appellant and she refused to accept the service. Thereafter summons were affixed at the address of the appellant. Accordingly, the Trial Court has held that it was valid service in the eyes of law.

10. Further Trial Court has held that the order sheet revealed that appellant did not claim/receive the summons sent through registered post despite visits by the postman on two different dates.

11. In view of the above, the Trial Court has returned a finding that appellant clearly knew about the filing of the suit and intentionally avoided to receive the process as well as to appear in the Court to defend the suit.

12. The Trial Court has additionally held that as the address was correct and even legal notice was received by the appellant at the said address, the application under Order 9 Rule 13 was devoid of any merits and was dismissed.

13. Perusal of the record of the Trial Court shows that the suit was listed before the Court for the first time on 16.12.2016 when notice was