Banshi Lal vs Mahendra Kumar on 30 July, 2009

CMA-136/1997-Banshi Lal Vs. Shri Mahendra Kumar.        Judgment dt.30.7.09

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                S.B. CIVIL MISC. APPEAL NO.136/1997
                  Banshi Lal Vs. Shri Mahendra Kumar.

Date of order                         :             30th July, 2009

                                    PRESENT

              HON'BLE DR. JUSTICE VINEET KOTHARI

Mr. Vinay Chhipa for Mr. Sajjan Singh for the appellant.
None present for the respondent.

                                          -------

1.             Heard learned counsel.



2.             This misc. appeal is directed against the order dated

22.11.1996 whereby the application under Order 9 Rule 13 C.P.C. for

setting aside the ex-parte decree dated 20.9.1996 was rejected by the

learned trial court.



3.             The learned trial court has rejected the said application

on the ground that the summons of the Court were served on one

Radha, claiming to be the wife of plaintiff Banshi Lal Teli and,

therefore, the service was treated as sufficient and complete and ex-

parte proceedings were drawn against the defendant and the suit was

decreed ex-parte. The suit was for recovery of money.
 CMA-136/1997-Banshi Lal Vs. Shri Mahendra Kumar.            Judgment dt.30.7.09

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4.             The learned counsel for the appellant-defendant submits

that the name of wife of defendant Banshi Lal Teli was Narbada and

not Radha Sahu. His address was also 36, Ashwini Bazar, Udaipur

(Raj.) and not Nehru Bazar, Udaipur and, therefore, the summons

wrongly served on one Radha was treated as sufficient and trial court

proceeded ex-parte.



5.             This Court has also perused the endorsement of summon

in question which shows the handwriting in endorsement "मन मर

पत     क     नम      क     सममन        पप      ककय " is different from the

handwriting of signature of Radha Sahu dated 30.9.1993. Therefore,

prima facie it appears that the same Radha Sahu has not appended the

said endorsement and this could be in the handwriting of the process

server or somebody else, who has given the report on 9.12.1993 that

the summons have been duly served on the wife of the defendant

Banshi Lal Teli. Therefore, it appears that in view of the evidence on

record filed along with the application under Order 9 Rule 13 C.P.C.

including the copy of the ration card and LIC nomination etc. that the

name of the wife of the defendant was Narbada and not Radha,
 CMA-136/1997-Banshi Lal Vs. Shri Mahendra Kumar.            Judgment dt.30.7.09

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therefore, the learned trial court has proceeded on wrong assumption

that the summons have been duly served on wife of the defendant.

Consequently, the learned trial court has committed an error in

rejecting the application under Order 9 Rule 13 C.P.C. vide order

dated 12.11.1996.



6.             Accordingly, the present appeal is allowed and the

impugned order dated 22.11.1996 is set aside and the ex-parte

proceedings against the defendant are also set aside. However, no

fresh summons are required to be served on the said defendant. The

present appellant defendant before this Court would now appear

before the learned trial court on 18th August, 2009. The learned

counsel for the appellant-defendant undertakes to inform about this

date and the learned trial court shall proceed in accordance with law

afresh from the stage of service on the defendant for the said date 18th

August, 2009 now. No order as to costs.

                                               [ DR. VINEET KOTHARI ], J.

item No.6
babulal/