[2025:RJ-JP:29000]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 2921/2012 Sardar Mal Yadav S/o Shri Suja Ram Yadav, R/o Pipli Ki Dhani, Post Achrol, Tehsil Amber, District Jaipur Rajasthan ----Appellant Versus M/s. R.K.D. Financial Service Limited, Branch Officer E-5, Ground Floor, Jaipur Tower, Opposite All India Radio, M.i. Road, Jaipur Rajasthan Through Its Branch Manager, Shri Dinesh Kumar Agrawal ----Respondent For Appellant(s) : Mr. Ram Prasad Sharma on behalf of Mr. Prahlad Sharma For Respondent(s) : Mr. Mahesh Chand Gupta HON'BLE MR. JUSTICE MANEESH SHARMA

Order

30/07/2025

1. This matter is listed for hearing today under the category of 'To Be Mentioned' on an application (IA No.1/2025) filed by the plaintiff/respondent for early hearing of this appeal.

2. For the reasons mentioned in the application, the same is allowed.

3. With the consent of the parties, this appeal is now heard on its merits.

4. The defendant/appellant has filed this appeal under Order 43 Rule 1(d) of the Civil Procedure Code, 1908 (CPC) against the order dated 21.05.2012, whereby, the application has been filed by the defendant/appellant, under Order 9 Rule 13 of the CPC, was rejected by the learned Additional District Judge No.5, Metropolitan City, Jaipur, in Civil Miscellaneous Case No.157/2011 titled as 'M/s. R.K.D. Financial Service Limited Vs. Sardar Mal Yadav'.

5. Brief facts giving rise to the present appeal are that the plaintiff/respondent filed a suit for recovery of Rs.2,20,376/- and interest @ 36% per annum. Notice of the suit was issued to the defendant/appellant. However, according to the process server's report, the defendant/appellant was not present at the address. Instead, his mother and brother were present when the process server tendered the notice to them. Since the mother and brother of the defendant/appellant did not accept and refused the summons, the process server affixed the summons in the presence of two witnesses. Therefore, service upon the defendant/appellant was treated complete and an ex-parte decree was passed on 10.03.2011.

6. Thereafter, the defendant/appellant filed an application under Order 9 Rule 13 of the CPC, alleging that the summons was never served upon him. He further stated that he only gained knowledge of the litigation upon receiving a warrant under order 21 Rule 54 of the CPC. Therefore, he also filed an application under Section 5 of the Limitation Act for condonation of delay and prayed for setting aside the ex-parte decree dated 10.03.2011.

7. The plaintiff/respondent contested this application under Order 9 Rule 13, submitting that the defendant/appellant was duly served. He argued that the defendant/appellant's mother and brother refused the summons in the presence of two witnesses, justifying the process server's action of affixing the summons. Thus, he contended that the learned Trial Court rightly passed the ex-parte decree against the defendant/appellant. The plaintiff/respondent further submitted that the application under Order 9 Rule 13 of the CPC, provided no sufficient reason for setting aside the ex-parte decree dated 10.03.2011.

8. The said application of the defendant/appellant was dismissed by the learned Trial Court vide its impugned order dated 21.05.2012, whereby the learned Trial Court has held that the application filed by the defendant/appellant was not bona fide and that there was no sufficient cause for condonation of delay. Accordingly, the application filed by the defendant/appellant under Order 9 Rule 13 of the CPC was rejected by the impugned order.

9. Learned counsel for the defendant/appellant submitted that the recovery suit was filed in 2010, and the alleged service was effected upon the defendant/appellant on 15.12.2010. The ex- parte decree was passed on 10.03.2011. He submitted that the defendant/appellant was never properly served with the notice and remained unaware about the pendency of the suit and the ex- parte decree.