The court emphasized the necessity of adhering to procedural rules under the Code of Civil Procedure to ensure that ex-parte decrees are justly administered and not issued without proper evidence of service.

Order :

ANOOP KUMAR DHAND, J.

1. By way of filing the instant civil misc. appeal, a challenge has been led to the impugned order dated 09.04.2019 passed by the Additional District Judge No.4, Jaipur, District Jaipur (hereinafter referred to as ‘the trial Court’) by which the application filed by the defendants-petitioners (hereinafter referred to as ‘the defendants’) under Order 9 Rule 13 CPC for setting aside the ex- parte judgement and decree dated 23.12.2011 has been rejected.

2. Learned counsel appearing on behalf of defendants submits that a suit for cancellation of registered sale deed was filed by the plaintiffs-respondents against the defendant and against one person who was witness of execution of the aforesaid sale deed.

3. Counsel submits that notice of the aforesaid suit was issued to the defendants on 04.03.2008 and on 10.03.2008, the Process Server submitted a report that the defendants have refused to accept the notice of the plaint and on the basis of the aforesaid report, the trial Court proceeded ex-parte by passing an order dated 14.03.2008 and thereafter, the suit was decreed ex-parte vide judgment dated 23.12.2011.

4. Counsel submits that deliberately and intentionally one witness of the aforesaid sale deed was impleaded as defendant in the suit, who was neither a necessary nor a proper party, but in spite of the above, he was impleaded as party in the array of cause-title. Counsel submits that the aforesaid witness, after service, submitted an admitted written statement in favour of the plaintiffs and on the basis of the averments admitted by him in his written statement, the suit was decreed ex-parte.

5. Counsel submits that in fact two different sale deeds were executed between the parties on the same date. Since one of the suits was related to lesser amount, hence, the same was preferred before the Court of Civil Judge and there also, the ex-parte proceedings were initiated and ex-parte decree was passed against the defendants, but the said suit was decreed, against which an appeal was preferred by the plaintiffs before the Appellate Court, however, the said appeal was rejected, hence, the judgment passed by the Civil Court has attained finality. Counsel submits that even the defendants appeared before the Appellate Court in the said appeal, where also the plaintiffs never apprised the defendants about passing of the ex-parte decree in the instant case, hence, the defendants were not aware about the aforesaid ex-parte decree dated 23.12.2011. Counsel submits that incorporating all these facts, an application under Order 9 Rule 13 CPC was submitted before the trial Court for setting aside the ex- parte decree, which came to be dismissed vide order dated 09.04.2019.

6. Lastly, counsel argued that on the basis of the testimony of the witnesses, in whose presence the notices were alleged to be affixed on the conspicuous place at the residence of the defendants, the refusal report was submitted by the Process Server, were not the residents of the area, where the defendants are residing. The defendants are the residents of Village Kudiyon Ka Baas, Tehsil Phulera, District Jaipur, whereas both the above witnesses are residents of some other village, i.e., residents of nearby Village Mundota. Hence their presence on the place of residence of the defendants is doubtful. He further submits that even these two witnesses were also not produced in the witness box in support of the refusal report submitted by the Process Server. Hence, under these circumstances, interference of this Court is wa