Irregularity in service of summons does not justify setting aside an ex parte decree if the defendant had knowledge of the proceedings.

ORDER :

REKHA BORANA, J.

1. The present appeal has been filed against the order dated 07.05.2022 passed by the District Judge, Jodhpur Metropolitan, Jodhpur in Civil Misc. Case No.50/2021 whereby the application under Order 9 Rule 13, CPC as filed on behalf of applicant-defendant No.1 was dismissed.

2. Vide the application, it was submitted on behalf of the applicant that the notice/summons in the suit were never served on him and therefore, he could not appear before the learned Trial Court on the date fixed for hearing. It was submitted that the plaintiff intentionally filed the wrong address of applicant- defendant No.1 whereas he did not reside on said address. On the said address i.e. A-2/20, GDDIDC Somnath Industrial Estate, Daman (U.T) a factory in the name of ‘National Traders’ was running whereas the factory of the applicant was situated/running at A-2/21 with the name of ‘Apple Polymers’. The manager and the labourers of the applicant worked in the said factory i.e. ‘Apple Polymers’ and he himself had his business in the name of ‘Popular Stores’ at the address mentioned at Mumbai. Therefore, the notice as served by the plaintiff in the suit proceedings on the address at A-2/20 cannot be termed to be a proper service on applicant.

3. It was further submitted that even the report of the process server was to the effect that the applicant was not found on the said address. It is only when the notice in the execution proceedings was served on him that he came to know about the decree dated 02.09.2020. It was submitted that co-incidentally he was available at Daman on 02.01.2021, the date when the notice of the execution proceedings was delivered at ‘National Traders’ and the staff of ‘National Traders’ handed over the same to him. Soon after the said receipt, he applied for the certified copies of the relevant documents and on 27.01.2021, filed the application under Order 9 Rule 13, CPC along with application under Section 5 of the Limitation Act for condonation of delay.

4. With the above averments, a prayer to set aside the ex parte decree dated 02.09.2020 was made.

5. The learned Trial Court while proceeding on to dismiss the application, recorded the following findings:-

(i) As per the track status of the notice sent through registered post, the notices/summons as sent to defendant No.1-Navneet Shah were delivered on 06.06.2019. It was after more than a period of two months of the said report that the order to proceed ex parte was passed.

(ii) Further, the decree was passed on 02.09.2020, that is, approximately after a period of one year from 06.06.2019 i.e. the date of service of notice on defendant No.1.

(iii) Report dated 14.08.2019 of the Superintendent of the Civil Court, Daman also reflected the notice to have been served on defendant No.1.

(iv) The notices issued in execution proceedings No.260/2020 were served on the applicant on 21.12.2020 on the same address as reflected in the plaint.

(v) No document in support of the application under Order 9 Rule 13, CPC was filed on behalf of the applicant.

(vi) No sufficient reason for delay in filing the application under Order 9 Rule 13, CPC was assigned and hence, the delay was uncondonable.

6. Learned counsel for the appellant submitted that the findings as recorded by the learned Trial Court are totally erroneous as not a single document was available on record before the Court to reveal that the plaintiff had anything to do with the factory premise situated at A-2/20. To substantiate his submission, counsel relied upon certain documents annexed along with the stay application as filed by him. Learned counsel submits that the said documents reveal that defendant No.1 was a partner of the firm ‘Apple Polymers’ situated at A-2/21 and not of ‘National Traders’ situated at A-2/20. The ‘list of partners’ of both the firms have been annexed along with the stay application.

7. Counsel further submitted that the notices/summons in the suit proceedings were never served on defendant No.