Shri Angad Wason vs . Shri Rajneesh Jain
2022 Latest Caselaw 10126 HP

Shri Angad Wason vs. Shri Rajneesh Jain

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OMP(M) No. 20 of 2020 in Civil Suit No. 25 of 2018

30.11.2022 Present: Mr. Vivek Sharma, Advocate for the non-applicant/ plaintiff.

M/s Lokesh Ahlawat, Rohit Sharma and Ajit Sharma, Advocates for the applicant/defendant.

OMP(M) No. 20 of 2020

By way of this application, a prayer has been made

by the applicant/defendant for condonation of delay in filing the

accompanying application under Order 9, Rule XIII, read with

Section 151 of the Code of Civil Procedure for setting aside the ex

parte decree dated 30.12.2019.

Having heard learned Counsel for the parties and

having gone through the averments made in the application, as this

Court is satisfied that delay in filing the application is bonafide

and not intentional, this application is allowed and delay in issue is

condoned. The application stands disposed of accordingly.

OMP No. 263 of 2020

By way of this application filed under Order 9, Rule

XIII, read with Section 151 of the Code of Civil Procedure, the

applicant/defendant has prayed for setting aside the decree dated

30.12.2019, in terms whereof the suit filed by the non-applicant/

plaintiff was ex parte decreed for a sum of Rs.50.00 Lac with

costs.

Mr. Lokesh Ahlawat, learned Counsel for the

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applicant/defendant has submitted that a perusal of the documents

Annexure A-1 to A-3 appended with the application would

demonstrate that since the year 2018, the applicant/defendant was

not residing at the address which was given in the civil suit but he

had shifted to a new premises in Gurgaon. He has further drawn

the attention of the Court to the report of the Process Server on the

back of the summons issued by this Court dated 20th April, 2018

and submitted that the report of the Process Server dated

01.05.2018, does not discloses the name of the person upon whom

the summons was served upon by the Process Server and as the

said summons in fact was never served upon the applicant-

defendant, therefore, it cannot be inferred that said summons in

fact was served upon the applicant/defendant. Accordingly, he has

submitted that as the order in terms whereof the applicant/

defendant was proceeded against ex parte by this Court, i.e. order

dated 20.06.2018, is bad in the eyes of law because the fact of the

matter is that the applicant was never served nor he ever refused to

accept the receipt of the summons, the present application be

allowed and ex parte decree be recalled and defendant be

permitted to contest the suit on merit.

The application is opposed by the non-applicant/

plaintiff on the ground that the address which was given in the

agreement entered into between the parties and also on the cash

receipt, which had resulted in the institution of the suit, was the

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same as was provided in the memo of parties of parties of the suit

by the plaintiff and further it is not as if the defendant had

altogether left the suit premises because the report of the Process

Server dated 20th April, 2018 is also to the effect that defendant

was residing in Gurgaon but he used to visit the same in the

afternoon. Learned counsel for the non-applicant/plaintiff has

further submitted that the report of the process server dated

01.05.2018 is absolutely clear that there is no ambiguity in the

same that the notice was in fact served upon the defendant and he

not only refused to accept the summons but also stated that he has

nothing to do with the plaintiff. Accordingly, as prayer has been

made that as the application is without any merit, therefore, the

same be dismissed.

I have heard learned counsel for the parties and also

gone through the application as well as documents appended

therewith as also the reply filed thereto. Record of the civil suit

file is also available with the Court.

The defendant herein was proceeded against ex

parte by this Court on 28th June, 2018, which order reads as under:

"As reported by the Registry, summons issued to the sole defendant has been received back unserved, as he has refused to received the summons, which were tendered to him for service, but he returned the same

after going through the contents thereof. Therefore, defendant is proceeded ex-parte.

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List after two weeks."

This order is passed upon the report of the Process

Server which was made on the summons which were issued by

this Court on 28th March, 2018, in terms whereof the defendant

was called upon to appear before the Court on 16th May, 2018. A

perusal of the report of the Process Server both dated 20.4.2018 as

also dated 01.05.2018 does not demonstrates that the summons in

fact on 01.05.2018 was served upon the defendant Rajneesh Jain.

All that this report states is that for the purpose of the service of

Sh. Rajneesh Jain, the Process Server had gone to the spot and the

person present after disclosing his name and after reading the

summons, refused to accept the same and he verbally stated that

he has got nothing to do with the plaintiff. On the basis of this

vague report of the Process Server, it cannot be assumed that the

person mentioned by the Process Server in his report indeed was

Rajneesh Jain. Nothing prevented the Process Server from

mentioning in the report, the particulars of the person upon whom

purportedly the summons was served. Therefore, this renders

credibility to the contention of leaned counsel for the applicant-

defendant that the order in terms whereof the applicant was

proceed against ex parte is bad in law because fact of the matter is

that the applicant/defendant was neither served in the matter nor it

could be inferred that he refused to receive the summons.

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Accordingly, in view of the above discussion, this

application is allowed and order dated 28.6.2018 is re-called so

also the judgment and decree dated 30.12.2019. This is subject to

payment of cost of Rs.50,000/- by the applicant-defendant to the

non-applicant/plaintiff. The cost is being imposed upon the

applicant/defendant as it is not in dispute that the address of the

applicant/defendant, as was mentioned in the civil suit, was in fact

the same address which was held out by the applicant/defendant to

the non applicant/plaintiff at the time when the agreement etc. was

entered into between them.

With these observations, this application is disposed

of. Ex parte decree dated 30.12.2019 is recalled and the civil suit

is ordered to be restored to its original number.

Civil Suit No. 25 of 2018

In view of notification dated 17.10.2022, this Civil

Suit is disposed of by ordering that the case be now transferred to

the Court of learned Senior Civil Judge, Nalagarh, District Solan

H.P. Parties through Counsel are directed to appear before the

Court of learned Senior Civil Judge, Nalagarh, District Solan, HP,

on 21.12.2022.

As agreed, the time for filing of the written

statement is concerned, the same shall start running from the date

(21.12.2022) when the defendant will put in appearance before the

learned Court below. It is further made clear that if the cost which

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has been imposed upon the applicant/defendant is not paid by him

to the non applicant/plaintiff before the learned Court below on

the next date of hearing then this order will loose its efficacy and

the ex parte decree shall be back in force for all intents and

purposes.

    November 30, 2022
       (narender)
                       r      to                    (Ajay Mohan Goel)
                                                         Judge