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CWP-10937 of 2012

In the High Court of Judicature for Rajasthan

at Jaipur Bench, Jaipur

S.B.Civil Writ Petition No.10937 of 2012

Subodh-Petitioner

vs.

Addl. District & Sessions Judge No.2, Deeg-

Bharatpur-Respondents.

Date of Judgment ::: 01.8.2012

Present

HON'BLE MS. JUSTICE BELA M. TRIVEDI

Mr.RK Daga for the petitioner.

Mr.Bharat Saini for the respondent No.2.

Judgment

By the Court:

1.The challenge in the present petition is

the order dated 13.7.2012 passed by the

Addl. District & Sessions Judge, No.2,

Deeg, Bharatpur (hereinafter referred as

the “trial court”) in Civil Suit No. 23 of

2009 (35 of 2008), whereby the trial court

has partly allowed the application of the

petitioner-original defendant No.2 filed

under IX Rule 7 of CPC. With the consent of

learned counsels for the for the petitioner

and for the contesting respondent No.2, the

petition is finally heard at the admission

stage. Notices to the other respondents

being performa are waived.

2.The short facts giving rise to the present

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CWP-10937 of 2012

petition are that the respondents No. 2 to

8-original plaintiffs have filed the suit

seeking damages against the petitioner and

the respondent No. 9 to 13 (original

defendant Nos 1 to 6), under the Fatal

Accidents Act. In the said suit, summons

were issued to the petitioner who was at

the relevant time, in judicial custody at

the Central Jail, Sewar, Bharatpur. It

appears that the said summons were served

by registered post and the trial court

considering the acknowledgment receipt

treated the said service as sufficient

service of summons and proceeded ex parte

against the petitioner. The petitioner

thereafter having come to know about the

said ex parte proceedings, submitted an

application under Order IX Rule 7 of CPC on

5.6.2005 stating interalia that he was

never served with summons in the jail and

the service could not be said to be proper

service. The said application was partly

allowed by the trial court vide the

impugned order, by which the trial court

permitted the petitioner-defendant only to

participate in the further proceedings of

the suit, however declined

him the

opportunity to file any written statement.

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CWP-10937 of 2012

Being aggrieved of the said order, present

petition has been filed under Article 227

of the Constitution of India.

3. It has been sought to be submitted by

learned counsel Mr. RK Daga for the

petitioner that the petitioner was never

served with the summons in the jail and the

trial court committed an error in treating

the service of summons to the jail

authority as the sufficient service to the

petitioner and in proceeding exparte

against the petitioner. He also submitted

that though the trial court had observed

that the summons should have been sent

through jail superintendent and the same

was not sent as such, the trial court

further committed error in treating such

service of registered post addressed to the

jail authority as the sufficient service.

According to Mr. Daga, the petitioner was

required to be given opportunity to contest

the suit by permitting him to file written

statement and to lead the evidence. As

against this, the learned counsel Mr.

Bharat Saini for the respondent No.2, who

is the contesting respondent submitted that

the petitioner had not come with clean

hands inasmuch as other defendants are the

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CWP-10937 of 2012

brothers and relatives of the petitioner

who had already appeared in the suit and

that the petitioner was on parole during

the period from 16.5.2012 to 4.6.2012 and

therefore it was not believable that the

petitioner came to know about the exparte

proceedings against him only on 5.6.2012.

He has relied upon the decision of the Apex

Court in the case of Rasik Lal Manikchand

Dhariwal and another vs M.S.S. Food

Products (2012) 2 SCC 1