Service of summons on a defendant's son who does not reside with him is not proper under Order 5, Rule 15 CPC.

1. - This appeal under Order 43, Rule 1 (d) CPC is directed against the order dated 28.01.2014 passed by the Additional District Judge No. 4, Jodhpur Metro, whereby the application filed by the appellant under Order 9, Rule 13 CPC seeking setting aside of ex-parte judgment and decree dated 07.01.2011 has been rejected.

2. A suit was filed by the respondents against the appellant seeking compensation to the tune of Rs.64,20,000/- on account of death of one Ashok, who while using the Swimming Pool at Fun World, Jodhpur died. The suit was decreed ex-parte on 07.01.2011.

3. Where after, an application under Order 9, Rule 13 CPC was filed by the appellant, inter alia, with the averments that the suit was wrongly decreed ex-parte against him by treating service of summons on his son Amit Singhvi as proper, though said Amit Singhvi doesn't reside with him, who is the son of his first wife, was staying separately from him and they were not on talking terms. It was claimed that when the summons of First Appeal No. 297/2013 were received by applicant's another son Rajesh, the fact of filing of the suit and passing of the decree came to his notice. It was prayed that ex-pare decree be set aside.

4. Reply to the application was filed by the respondents and it was submitted that despite service of summons, the applicant-respondent deliberately did not appear and the present application has been filed only with a view to delay the execution of the decree.

5. After hearing the parties, the trial court came to the conclusion that the address of the appellant was indicated as Manager, Fun World, Chopasni Road, Jodhpur and only appellant's own affidavit in support of the application has been filed, no other affidavit indicating that the applicant was not Manager of Fun World has been filed and, therefore, as the summons were duly served on appellant's son, the ex-parte proceedings were rightly initiated, ex-parte decree was correctly passed, there was no reasonable cause for setting aside the said ex-parte decree and, consequently, dismissed the application.

6. It is submitted by learned counsel for the appellant that the trial court committed error in coming to the conclusion that the summons were properly served on the appellant, inasmuch as, the requirement of Order 5, Rule 15 CPC is that in case the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence, the service may be made on any adult member of his family, who was residing with him. It was submitted that the specific case of the appellant that the summons were served on Amit Singhvi, son of his first wife, with whom, he is not on talking terms cannot be treated as proper service as, said Amit was not residing with him. The trial court without adverting to the said aspect only relying on the fact that his address was indicated as Manager, Fun World, Jodhpur in the proceedings under Section 304-A IPC, treated the service as proper, which is ex-facie incorrect besides the fact that the address indicated was not the residence of the appellant and, therefore, the order impugned deserves to be quashed and set aside. It was submitted that the appellant has been condemned unheard and, therefore, the opportunity of hearing by way of setting aside the ex-parte order deserves to be granted to him.

7. Learned counsel for the respondents opposed the submissions made by learned counsel for the appellant.

8. It was submitted that it is not in dispute that Amit Singhvi is son of the appellant and the summons were served on him and, therefore, the service of summons on the appellant were in accordance with the provisions of Order 5, Rule 15 CPC and as the appellant failed to appear despite due service, the trial court was justified in proceedings ex-parte and to decide the suit ex-parte and, therefore, the order impugned does not call for any interference.

9. I have considered the submissions made by learned counsel for the part