J U D G M E N T

POONAM A. BAMBA, J

1.0 Vide present appeal, the appellant is assailing order dated 12.05.2023 passed by the Ld. ADJ-04, North-West District, Rohini Courts, whereby the appellant‟s application under Order IX rule 13 of The Code of Civil Procedure, 1908 („CPC’) bearing no. Misc. DJ 301 of 2022 titled as “Anuj Tyagi vs. Kare India Development Services Pvt. Ltd. & Anr.” for setting aside of ex parte judgment and decree dated 06.07.2020, was dismissed.

2.0 Ld. Counsel for the appellant submitted that the Ld. ADJ failed to appreciate that from 18.04.2018 to 08.05.2018, the appellant and his wife were in Mumbai; and had even placed on record air tickets in support. Further, at that time the appellant‟s daughter was studying in Haldwani, Uttarakhand, since 2017 and the appellant‟s seventeen years old minor son was staying with his Chacha in Sector-11, Rohini, Delhi. Only their domestic help Sanjit Kumar was at home at that time. These facts clearly show that there was no attempt on the part of the appellant to evade service. Ld. Counsel also submitted that relying upon the report dated 26.04.2018 of the process-server, the Ld. Trial Court arrived at conclusion that the appellant failed to appear despite service, totally ignoring that the appellant and his wife were not in Delhi during that period.

2.1 Ld. Counsel for the appellant also argued that the Ld. Trial Court even erred in referring to the past conduct/process-server‟s report pertaining to the previous date of hearing while rejecting the appellant‟s plea. He submitted that in terms of Order IX rule 13 CPC, the appellant was required to explain his conduct of non-appearance only on the date of hearing, when he was proceeded ex-parte. His conduct pertaining to the previous date of hearing could not have been taken into consideration for rejecting the explanation offered. In support, reliance was placed upon the judgment of the Hon‟ble Supreme Court in Tea Auction Ltd. vs. Grace Hill Tea Industry and Anr., AIR 2007 SC 67.

3.0 Per contra, Ld. counsel for the respondents submitted that the appellant has failed to explain his non-appearance despite service for 01.03.2018 as well as for 05.05.2018. Ld. counsel also submitted that the appellant has simply stated that he as well as his wife were away to Mumbai on 18.04.2018 and returned on 08.05.2018, but no explanation has been provided for his non-appearance on 01.03.2018. Even the Ld. Trial Court has observed in its order dated 01.03.2018 that as per the service report, the defendants/ appellant herein seem to be evading service of summons. In view of which, fresh summons were issued directing service even by way of affixation, returnable on 05.05.2018. The summons for 05.05.2018 were duly served by way of affixation as per report of process-server dated 26.04.2018. It was argued that in terms of Order V rule 17 CPC, the summon was duly affixed on the wall adjacent to the gate i.e. the conspicuous part of the house in which the appellant no. 1 ordinarily resided/ carried on business. Further, the process-server has duly attested/stated on oath the factum of affixation. Summon was also served by way of “refusal” as reported on the envelope whereby the summons were sent by Speed Post. Ld. counsel for the respondents also submitted that the appellant has not disputed the identification of the property and the address. It is also not disputed that the person found at the given address/servant Sanjit Kumar was made aware of the summons. The appellant has not even disputed report of refusal on the speed post. Nor has he disputed the affixation of summons at conspicuous place. Further, the fact that the moment, the summons were issued at the same/given address in execution proceedings, the appellant filed application under Order IX rule 13 CPC for setting aside the ex-parte judgment against him. These facts clearly show that the appellants‟ non-appearance during pendency of the suit was deliberate.

3.1 Ld. counsel for the respo