IMPORTANT POINT
Suit of plaintiff could not be decreed merely because defendant was absent, more particularly when such suit was not tenable in eye of law and was not duly proved by him.

Bela M. Trivedi, J.— With the consent of the learned counsels for the parties, the appeal is heard finally at the admission stage.

2. The present appeal has been filed by the appellant-defendant under Order XLIII, challenging the order dated 5.9.2011 passed by the Additional District Judge No.3, Jaipur (hereinafter referred to as “the trial court”) in Civil Misc. Case No. 67/2010, whereby the trial court has dismissed the application of the appellant-defendant filed under Order IX Rule 13 of CPC, for setting aside the ex parte decree dated 25.3.2010 passed in Civil Suit No. 148/2009.

3. In the instant case, it appears that the respondent-plaintiff had filed the suit for specific performance of the agreement allegedly executed by the appellant-defendant on 12.8.2008, and allegedly amended thereafter from time to time. The said suit was proceeded ex-parte against the appellant-defendant under the guise that the appellant had failed to appear though duly served. The trial court ultimately had decreed the suit ex-parte on 25.3.2010 granting the decree of specific performance of the agreements in question in respect of the suit property, in favour of the respondent plaintiff, The appellant defendant having come to know about the said ex-parte decree, had submitted an application under Order IX Rule 13 for setting-aside the same, contending inter alia that the appellant was never served with any summons in the suit, and that on the relevant date on which the summons was allegedly served on the wife of the appellant, the appellant and his wife were not in the City of Jaipur, and therefore the signature of the wife of the appellant was also forged one. The trial court dismissed the said application of the appellant defendant vide the impugned order dated 5.9.2011, against which the present appeal has been filed.

4. This Court after hearing the learned counsels for the parties on 23.8.2013, was prima facie of the opinion that the trial court had proceeded with the suit ex-parte with undue haste and without verifying the record as to whether the defendant was properly served or not, and that the concerned Reader of the trial court had also acted without any authority by drawing the order sheet dated 21.12.2009 in the suit. This Court, therefore, had called for the remarks from the concerned Presiding Officer and also the concerned Reader of the trial court. Both have submitted their remarks. The concerned Reader, who is now retired, submitted that concerned Presiding Officer was on leave on 21.12.2009 and since many matters were listed on that date, the signature on the order sheet had remained to be obtained from the concerned In-charge Presiding Officer. The concerned Presiding Officer has submitted inter alia that he was on leave on 21.12.2009 and 22.12.2009, on which date the concerned In-charge Presiding Officer had passed the order for proceeding ex-parte and that he had passed the decree as the evidence of the plaintiff was not challenged by the appellant defendant. Neither the explanation submitted by the Reader nor the explanation submitted by the Presiding Officer is found to be satisfactory. From the order sheets of the suit, it clearly transpires that the suit was filed on 19.12.2009 and the notice issued to the defendant was made returnable on 21.12.2009. On 21.12.2009, the Presiding Officer was on leave and the order sheet was drawn by the Reader as under:

(Vernacular matter omitted)

5. The said order sheet was neither signed by the concerned Reader nor in-charge Presiding Officer and the matter was kept on 22.12.2009, on which date the concerned Presiding Officer passed the order for proceeding ex-parte on the ground that the defendant was not present, though duly served. The In-charge Presiding Officer appears to have drawn the order sheet without verifying the record and thereafter the regular Presiding Officer also proceeded ex-parte with the suit without satisfying itself as to whether the defendant was properly