JUDGMENT
Devinder Gupta, J.
(1) This is defendants’ application under Order xxxvII Rule 4 read with Order 9 Rule 13 and Section 151 of the Code of Civil Procedure praying for setting aside the judgment and decree dated 19th April, 1991.
(2) On 26th September, 1989, suit for recovery of Rs.4,39,000.00 was filed by the plaintiff against the defendants under Order xxxvII Civil Procedure Code . Summons were directed to be issued to the defendants in Form 4 of Schedule B of Order xxxvII C.P.C., returnable 20th November, 1989. Appearance on behalf of the defendants was put in on 24th October, 1989. Plaintiff applied for summons for judgment by moving application (I.A.8551/89). Summons for judgment were directed to be issued to the defendants through registered post for 1st February,1990. Summons issued under registered cover were received back undelivered with the remarks that the defendants were not found at the given address. Fresh summons for judgment were directed to be issued for 17th April, 1990. The case was taken up on 25th May, 1990 when it was directed to be posted for 23rd July, 1990, on which date it was noticed that summons for judgment issued to defendants 1 to 3 had been received back unserved with the report that defendants had refused to accept service. Since the report was lacking as to whether the summons for judgment were or were not left at the given address, fresh summons for judgment were directed to be issued by ordinary process, registered post and as well as dusty for 9th November, 1990. It was also directed that defendants, in case they are not available or refuse to accept the service, summons be left at the given address. On 21st March, 1991, it was noticed that summons for judgment were duly served when the same were left at the given address on 31st December, 1990. Defendants were thus deemed to have been duly served. Since no application for leave to defend was moved within time, the case was posted for 19th April, 1994 for passing appropriate orders, on which date decree was. passed in plaintiffs favor and against the defendants.
(3) The defendants’ case is that after having been server with summons they engaged Shri H.L.Tiku, and Shri M.N.Tikku, Advocates, who filed his memo of appearance on 24th October, 1989. Only copy of the plaint was served and they were not served with any copy of documents. Thus there was non-compliance of the provisions of Order xxxvII Civil Procedure Code . Defendants never received any summons for judgment. Towards the end of 1990 and beginning of 1991, defendant No.2 wanted to visit Delhi to make enquiries about progress of the case but due to the disturbances in Kashmir Valley he could not visit Delhi. On 24th August, 1991, Shri Anil Bhan, Advocate, who introduced himself to be plaintiffs counsel met defendant No.2 and informed that decree has been passed against the defendants) upon which defendant No.2 came to Delhi, made enquiries and got the file inspected and ultimately moved an application on 3rd September, 1991 for setting aside the decree. It is alleged that after putting appearance within the stipulated time the defendants were awaiting for summons for Judgment. Defendants acted diligently. Summons for judgment were not served upon the defendants. Summons were also not left the the given address. The reports on the summons were manipulated one. Even earlier reports of refusal were also manipulated one. Defendant No.3 was not in Srinagar on 26th March, 1990, therefore, his refusing to accept summons is not possible. In nutshell the defendants’ case is that they were never served with summons for judgment and service on them is defective.
(4) The plaintiff has resisted the defendants’ claim and alleged that defendants’ contention that they were not served initially with copy of documents Along with summons of the suit is false. No such objection was raised when appearance was put in on behalf of defendants on 24th October, 1989 when vakalatnama was filed by Shri M.N.Tikku, Advocate. On the same day counsel also filed address for service upon all the defendants. On 1st November, 1989, counsel for the plaintiff personally served a copy of the application for summons for judgment on the counsel for defendants. At the time of service through Shri M.N.Tikku, Advocate, his clerk received the copy of application for summons for judgment and made endorsement on the original. On 20th November, 1989, plaintiff thorough counsel appeared before Deputy Registrar. Defendants’ counsel Shri M.N.Tikku also appeared and participated in the proceedings. On 20th November, 1989, defendants had notice of the next date of hearing, namely, 1st February, 1990. Summons were also duly served on the defendants and the same were left at the given addresses. This was done after the defendants had refused to accept the summons. Plaintiff claims that there is no ground to set aside the decree.
(5) I have heard learned counsel for the parties, who have taken me through the entire record.
(6) The application filed by the defendants for setting aside the decree is supported on the affidavit of Shri Nazir A.Shah, who is defendant No.2 and a director of defendant No.1 company. After the plaintiffs filed their reply, defendants filed rejoinder and the same is also supported only on the affidavit of Shri Nazir A.Shah. Neither the application, nor the rejoinder are supported on the affidavit of defendant No.3. Defendant No.3 only moved an application for stay of the execution of the decree. The said application is also not signed by him. Only affidavit in support thereof is sworn by him. It is not disputed that defendant No.3 is also a director of defendant No.1 company. A perusal of the record would show that after a report was received in Court as regards refusal of service on summons for judgment, the Court directed the defendants to be served with the summons for judgment by leaving a copy of the summons on the given address, in case defendants were not to be found on the given address or in case of their refusal to accept the summons. The service on the second occasion was effected on 31st December, 1990 and as per the report as regards defendant No.1, which is a company, summons were left at the given address, namely, Manshah Travels Pvt. Ltd., opposite Air Cargo Complex, Sherwan Road, Srinagar, Kashmir. When summons were sought to be served on defendant No.2, it was noticed that he, namely, Nazir A.Shah was not present on the given address. Copies of summons and application were left at the given address, which is the same address as that of the company. Service report on summons to defendant No.3 states that summons and copy of the applications were left at the given address when defendant No.3 who was present at the spot refused to accept the same. The report besides being witnessed by the process server is also witnessed by one Abdul Majid Bhatt. Defendant No.3 has not come forward in swearing an affidavit that he was not present in the company’s office on 31st December, 1990 or summons were not offered to him. Even the stand taken by the defendants that initially summons of the suit were not accompanying the documents besides plaint stands falsified on the report on the summons, which is an elaborate one. The report says that summons were duly served with copy of the plaint and documents. Had this been not the position, there was no reason why an objection was not raised at the earliest when appearance was put in on behalf of the defendants by Shri M.N.Tikku, Advocate, who was also present in Court on 20th November, 1989 when on the plaintiffs prayer summons for judgment were directed to be issued to the defendants for 1st December, 1990. Thus the defendants were fully aware of the proceedings as also next,date of hearing, namely, 1st February, 1990. The defendants were duly served on the addresses supplied to the Court.
(7) In these circumstances, there is hardly any ground what to say sufficient ground to set aside the ex parte decree. The application is accordingly dismissed with costs quantified at Rs.3,000.00 .
(8) I.A.9859/91 dismissed.