The main legal point established in the judgment is that the appearance of a party in a miscellaneous proceeding can imply knowledge of the suit, and the court may reject claims of non-receipt of summons/notice based on such appearance.

Biplab Kumar Sharma, J.

1. The basic facts material for the purpose of disposal of this application under Article 226/227 of the Constitution of India are as follows:

2. The Respondent No. 2 herein as the Plaintiff instituted Money Suit No. 291/2000 against the present Petitioner as the Defendant in the Court of Civil Judge, Senior Division, Guwahati. An ex-parte judgment and decree was passed on 03.12.2001, which, however, was set aside upon making an application by the Defendant/Petitioner under Order 9, Rule 13 Code of Civil Procedure, which was registered and numbered as Misc. Case No. 57/ 2003. The order was passed on 24.08.2004 awarding a cost of Rs. 500/-

3. With the order passed on 24.08.04 in Misc. Case No. 57/03 setting aside the ex-parte judgment and decree, the trial Court also passed an order in the money suit fixing the next date as 15.09.04 for appearance of the parties. Orders passed on 24.08.04 and thereafter have been indicated in Annexure-B to this petition, which are reproduced below:

24.08.04: M.S. No. 291/2000 In view of the order passed in Misc. Case No. 57/03 the judgment and decree is set aside. The parties will appear on next date. Fix on 15.09.04 for appearance. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati

15.09.04: Ld. Advocate for the plaintiff is present. Defendant is absent. Fix on 04.10.04 for appearance. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati

04.10.04: Plaintiff is present. Defendant is absent. Defendant remained absent even after the suit is restored. Hence the suit will proceed ex-parte. Fix on 02.12.04 for ex-parte hearing. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati

02.12.04: Both parties are present. Defendant vide Ptn. No. 3123/04 has prayed to vacate the orders for ex-parte hearing. Fixing on 13.12.04 for objection hearing. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati

13.12.04: Both parties are present. Defendant has deposited the amount of cost of Rs. 500/-. Amount be paid to plaintiff. Heard both sides on ptn. For vacating the order for ex-parte hearing. Fix on 23.12.04 for orders. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati

23.12.04: P.O. is on leave, both parties are present Fix on 18.01.05 for N/O. Sd/- Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati"

4. On 18.01.2005 the learned Civil Judge passed the impugned order rejecting the prayer of the Petitioner to vacate the order for ex-parte hearing.

5. It is the legality and validity of the said order which is under challenge in this proceeding. Mr. D. Baruah, learned Counsel for the Petitioner has basically made the following submissions.

i) The trial Court did not take into account the provisions of Order-V, Rule 1,2 and 5 Code of Civil Procedure.

ii) The trial Court passed the impugned order in utter disrespect of the provisions of Order IX Rule Code of Civil Procedure.

iii) No summons/notice having been served on the Petitioner, the trial Court could not have assumed jurisdiction under Order IX Rule 6 Code of Civil Procedure.

iv) The Petitioner having appeared only in the miscellaneous proceeding relating to setting aside of the ex-parte judgment and decree, although he was aware of the order dated 24.08.04, passed therein, he had no knowledge regarding the dates fixed in the suit inasmuch as no summons/notice was served on him in respect of the suit.

v) The trial Court, at least for ends of justice ought to have allowed the prayer of the Petitioner giving him a chance to contest the claim of the Plaintiff/Respondent.

6. Mr. Baruah has placed reliance on the following decisions:

1) (2002) 5 SCC 30 (Vijay Kumar Madan v. R.N. Gupta Technical Education Society).

2) (2002) 5 SCC 377 (Sushil Kumar Sabharwal v. Gurpreet Singh)

3) (2002) 4 SCC 697 (Deoraj v. State of Maharashtra)

4) AIR 1955 SC 455 (Shiromani Gurdwara Probandhak Committee v. Lt. Sardar Raghubir Singh and Ors.)

5) AIR 1994 Bom 141 (Jagdish Balwartrao Abhyankar v. State of Maharashtra).

7. Cou