ORDER

This misc. appeal has been filed to challenge the order passed on 02.02.2018 in MJC(Civil) No.2/2013 decided by Third Additional District Judge, Gadarwara, District Narsinghpur, whereby the MJC (Civil) filed by the appellant (hereinafter referred to as ‘defendant’) under Order 9 Rule 13 CPC alongwith application of Section 5 of Limitation Act was dismissed.

2 . Brief facts relevant for the decision of this appeal are that a civil suit registered as RCS No.14A/2011 was filed by respondent (hereinafter referred to as ‘plaintiff’) against defendant for seeking the relief of specific performance of contract of sale; that suit was decreed ex parte on 26.08.2011; defendant received the notice in the execution case of that decree on 16.01.2013 upon which he inquired about the case and learnt that the suit was decided ex parte against him on a wrong report of service of summons. No summons was received by defendant nor he refused any in the original civil suit; further no summons was affixed on the house of defendant; it appears that under a conspiracy a false report was filed before the trial Court. The defendant collected necessary documents and from there he came to know about the forged contract of sale, on the basis of which suit was wrongly decreed against him. He, therefore, filed an application under Order 9 Rule 13 CPC and a separate application under Section 5 of Limitation Act. The plaintiff contested both these applications. The learned trial Court afforded the opportunity of furnishing evidence to both the parties and after appreciating evidence ,it dismissed both the applications filed by the defendant.

3. The grounds raised herein are that the impugned order suffers from material irregularity as no summons was validly served upon defendant; he never refused to accept the summons. The plaintiff examined the process server to prove this service of summons upon defendant, but his testimony is not credible. The Gram Kotwar, who was instrumental in identifying defendant and the witnesses who had signed the note on the service report of summons were never examined. The service report was allegedly submitted to the Naib Nazir, but document bears only the seal of Naib Nazir and does not have his signature. These gross illegalities were completely ignored by the Court below. 4 . Further, there was no direction of the trial Court to get the summons served through affixation, thus the process-server acted beyond his authority by effecting service of summons through affixation. It is claimed that on receiving the notice in execution proceedings the defendant came to know about the suit and the decree passed against him; only then he took necessary steps for getting the decree set aside, but the learned Court below failed to appreciate the facts in correct perspective. It is, therefore, prayed that the impugned order of dismissing the applications of Order 9 Rule 13 CPC and Section 5 of Limitation Act be set aside with costs.

5. The plaintiff has very strongly challenged this misc. appeal and has prayed for its rejection.

6. Both the parties have been heard and the records of both RCS No.14- A/2011 and MJC (Civil) No.2/2013 have been perused.

7. Before embarking upon the detailed examination of legality of service of summons upon the defendant in RCSA no.14A/2011 let us examine under what circumstances the summons were declared to have been served upon defendant. In that civil suit the record of RCS No.14-A/2011 reveals that on 17.01.2011 the plaint was filed before the trial Court which was registered on 19.01.2011 and order to issue summons to defendant and also to State (defendant no.2) was passed. State was served on 23.02.2011 and record reveals that only one summon issued against defendant was received back in the Court. This summon had the endorsement that the defendant refused to receive the notice. The trial Court acting upon that service report, declared the defendant ex parte on 13.07.2011