Point of Law: Order V Rule 19 of CPC, mandates that before declaring fact that summons have been duly served, it was obligatory for this Court to examine Process Server, on oath, as requisite affidavit has not been sworn by Process Server.

JUDGMENT :

Virender Singh, J.

Appellant i.e. M/s Apex Marketing, has filed the present Letters Patent Appeal, under Clause 10 of the Letters Patent Act, as applicable to the High Court of Himachal Pradesh, against the order dated 28.05.2015, passed by the learned Single Judge, of this Court, in OMP No. 49 of 2014, in Civil Suit No. 43 of 2011.

2. By way of the order dated 28.05.2015 (hereinafter referred to as ‘the impugned order’) the learned Single Judge has dismissed the application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’). It is pertinent to mention here that vide order dated 28.05.2015, learned Single Judge has disposed of OMPs No.4 & 49 of 2014.

3. The parties to the appeal, are, hereinafter, referred to, in the same manner, in which, they were referred to, by the learned Single Judge.

4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:-

4.1. The plaintiff i.e. M/s P.A. Times Industries, had filed Civil Suit No. 43 of 2011, for recovery of Rs. 15,49,770/-, alongwith interest, against the defendant. The said suit had been filed on the ground that the plaintiff is a partnership firm under the name & style of M/s P.A. Times Industries, having its registered office at Kasauli Road, Dharampur, Tehsil Kasauli, District Solan, H.P., and deals with the business of assembling, manufacturing watches and also manufacturing plastic moulded goods, electronic items, machinery, moulded components, printed circuits, boards, batteries and other items.

4.2. The defendant used to purchase watches and spare parts from the plaintiff. The details of the goods purchased by the defendant have been given in the plaint, according to which, the outstanding amount has been shown to be Rs. 16,02,569/-. Some payment is stated to have been made by the plaintiff and the remaining amount of Rs. 15,49,770/- is stated to be due against the defendant.

4.3. Despite the legal notice, when, no response has been given by the defendant, then, the plaintiff has filed the present suit.

4.4. Thus, a prayer has been made to pass a decree in favour of the plaintiff and against the defendant, as claimed in the suit.

5. For the service of the defendant, when the case was listed before the learned Additional Registrar (J), on 09.04.2012, the following order has been passed by him, on the basis of the powers delegated to him, in this regard:-

“Dasti summons issued to the sole defendant has been received back after service by way of affixation and it is reported that defendant has refused to accept the service and the same was affixed on the residence of Managing Director of M/s Apex Marketing. Refusal of acceptance of summons is deemed to be served. No one has put appearance on his behalf. Let, written statement be filed within three weeks.”

6. When the case was listed before the Court, on 01.06.2012, no one had put appearance on behalf of the defendant and, as such, the defendant was proceeded against ex-parte. Order dated 01.06.2012 reads as under:-

“As per report of the Registry, the sole defendant was served for 13.03.2012, but none has put in appearance on its behalf and is accordingly proceeded against ex parte. The case be now listed for plaintiff’s ex-parte evidence on a date to be fixed by the Addl. Registrar (Judicial).”

7. Thereafter, the matter was listed for ex parte evidence. Consequently, the plaintiff had examined the Special Power of Attorney of the plaintiff as PW-1. Thereafter, the suit of the plaintiff was decreed, vide judgment and decree, dated 01.07.2013.

8. Thereafter, on 10th February 2014, the defendant had filed OMP No. 49 of 2014 under Order IX Rule 13 of the CPC, for setting aside ex-parte judgment and decree, dated 01.07.2013. The application has mainly been filed on the ground that the defendant was running its business from the rented premises, and thereafter, in the month of September, 2011, it had surrendered the possession of the said premises