[2023:RJ-JD:23208]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Revision Petition No. 79/2023

Smt. Karan Kunwar Widow of Shri Madan Singh, Aged About 71

Years, By Caste Rajput, Resident of Bansi, Tehsil Badi Sadri,

District Chittorgarh.

----Petitioner

Versus

1.

Smt. Krishna Kunwar D/o Shri Madan Singh, W/o Shri

Bhanwar Singh By Caste Rajput, Resident of Boheda,

Tehsil Badi Sadri, District Chittorgarh.

2.

Shambhu Singh S/o Shri Madan Singh, By Caste Rajput,

Resident of Bansi, Tehsil Badi Sadri, District Chittorgarh.

3.

Smt. Lalita Kunwar D/o Shri Madan Singh, W/o Shri Prem

Singh By Caste Rajput, Resident of Patolia, Tehsil Girwa,

District Udaipur.

4.

State of Rajasthan, Through Tehsildar, Badi Sadri,

Chittorgarh.

----Respondents

For Petitioner(s)

:

Mr. Abhinav Jain

HON'BLE MS. JUSTICE REKHA BORANA

Order

25/07/2023

1.

The present revision petition has been preferred against the

order dated 11.05.2023 passed by Additional District Judge No.1,

Nimbahera (Camp-Badi Sadri), Chittorgarh in Civil Misc. Case

No.44/2015 whereby the application under Order IX Rule 13 of the

Code of Civil Procedure as preferred by applicant defendant No.1

Smt. Krishna Kunwar has been allowed and as a consequence

thereof, the ex parte order dated 11.03.2014, preliminary decree

dated 08.07.2014 and the final decree dated 25.02.2015 have

been set aside.

2.

Learned counsel for the petitioner made the following

submissions :-

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(2 of 8)

[CR-79/2023]

(i)

The affidavits as filed by the plaintiff in support of her reply

to the application under Order IX Rule 13, CPC have not been

considered by the Court below before passing the impugned order.

(ii)

Mere bald allegation of the defendant that the

notices/summons were not served on her, has been considered by

the Court to be true without there being any evidence or pleading

in support of the said submission.

(iii)

The impugned order has been passed by the learned Court

below in terms of Order V Rule 17, CPC with a finding that the

procedure as prescribed in the said Rule, that is, affixation of the

summons on the door of the noticee or any conspicuous place has

not been followed whereas the same can only be termed to be an

irregularity in service of summons and nothing more than that.

Counsel relied upon the second proviso to Order IX Rule 13, CPC

and submitted that an ex parte decree cannot be set aside only on

the ground that there has been an irregularity in the service of the

summons.

(iv)

It is clear on record that the applicant refused to accept the

summons and therefore, the process server got the fact verified

by four independent witnesses. In view of the same, the service

was sufficient by all means and the learned Court below erred in

finding the said service to be insufficient.

(v)

So far as the finding reached by the learned Court below that

the summons were not affixed in terms of the procedure as

prescribed under law, the same was never a ground raised by the

applicant and therefore, the Court could not have given a finding

on the same.

[2023:RJ-JD:23208]

(3 of 8)

[CR-79/2023]

(vi)

Order V Rule 19, CPC prescribes that if a summon is

returned under Rule 17, CPC and the said return has not been

verified by the affidavit of the serving officer and even if it has

been verified, the Court shall examine him on oath and may make

further enquiry in the matter as it thinks fit. The learned Court

below erred in not examining the serving officer in terms of Order

V Rule 19, CPC as in the present matter, the summons were

returned in terms of Order V Rule 17, CPC and therefore, the

order impugned is not in consonance with law.

3.

In support of his submissions, learned counsel relied upon

the following judgments:

i. Parimal vs. Veena @ Bharti, (2011) 3 SCC 545.

ii. Nawal Kishore Bhageria vs. Additional District Judge

No.7, Jaipur Metropolitan, Jaipur & Ors., 2013 (1) DNJ

(Raj.) 253.

iii. Laxman Ram (LR