IMPORTANT POINT
Proper service of summons must adhere to the provisions of the CPC, and a party cannot benefit from their own negligence in failing to provide accurate contact information, which affects the validity of service and subsequent legal proceedings.

JUDGMENT :

NUPUR BHATI, J.

1. The present civil misc. appeal has been filed under Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure, 1908 (‘CPC’) assailing the order passed by learned District Judge, Merta in Civil Misc. Application No. 91/2011 whereby the application under Order 9 Rule 13 of CPC, filed by the appellant/applicant has been dismissed. The appellant has also prayed for allowing his application under Order 9 Rule 13 as well as his application for condonation. It is also prayed that the cost of the appeal and other damages be awarded from the respondents to the appellant/applicant. Certain other ancillary relief(s) have also been sought by the appellant/applicant.

2. Briefly stated, the facts of the case are that the respondent/plaintiff filed a suit (Annex.1) for recovery of Rs. 1,18,000/-along with interest against the appellant/defendant on account of the loan taken by the appellant and the promisory note signed thereto. After the learned Trial Court issued summons to the appellant/defendant to the suit, the appellant preferred an application under Order 7 Rule 11 of the CPC which was allowed on 14.12.2000 (Annex.2) and the suit (Annex.1) filed by the respondent/plaintiff stood abated. Thereafter, the respondent/plaintiff filed an application for restoration of the suit on 30.10.2004, which came to be allowed by the learned Trial Court vide on the same day, without issuing summons to the appellant/applicant.

3. Furthermore, learned Trial Court directed the respondent/plaintiff to file two sets of summons for service upon the appellant/applicant. The service of summons was not complete since the summons were returned on 04.12.2004, therefore, the learned Trial Court on 18.12.2004 again ordered for filing summons. Subsequently, on 07.01.2005, the summons were returned with a note that the appellant/defendant along with his family had started residing in Ajmer. Thus, the learned Trial Court directed the respondent/plaintiff to file summons to the fresh address of the respondent/plaintiff. The respondent/plaintiff, thereafter filed an application under Order 5 Rule 20 of the CPC for substituting service by publishing the summons in the news paper.

4. Thereafter, the respondent/plaintiff published summons in the newspaper, Dainik Navjyoti of District Nagaur edition on 05.02.2005, and on account of non-appearance of the appellant/defendant, ex-parte proceedings were initiated against the appellant/defendant on 17.05.2005, which culminated in the judgment and decree passed by the learned Trial Court vide order dated 18.02.2005 (Annex.3).

5. Subsequently, the appellant/defendant filed an application under Order 9 Rule 13 of CPC on 19.10.2011 (Annex.4) and a separate application on 13.05.2015 (Annex.5) under Section 5 of the Limitation Act, 1963 (‘Limitation Act’) for condoning the delay in filing the application under Order 9 Rule 13 of CPC. In response to the said application (Annex.4), the respondent/plaintiff filed a reply (Annex.6). After hearing the parties, the learned Tribunal dismissed the application filed by the appellant/defendant under Order 9 Rule 13 vide order dated 04.03.2016 (Annex.8).

6. Aggrieved of the order passed by the learned Trial Court vide order dated 04.03.2016 (Annex.8), the appellant/ defendant has preferred this appeal.

7. Learned counsel for the appellant submitted that the learned Trial Court has erred in dismissing the application filed by the appellant/applicant under Order 9 Rule 13 of CPC, since the respondent/plaintiff made no efforts for service of summons to the appellant/applicant. He submitted that admittedly, the fact that the appellant/applicant’s change of residence from Village Karakwal to Ajmer was in the knowledge of the respondent/plaintiff and despite this fact the summons were published under Order 5 Rule 20 of the CPC, in the daily news paper, Dainik Navjyoti Nagaur edition, instead of Ajmer edition.

8. Learned counsel for the appellant/ defendant also submitt