Rajesh vs Sudhir Bhai
2023 Latest Caselaw 5480 MP

                                                            1
                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                ON THE 3 rd OF APRIL, 2023
                                              CIVIL REVISION No. 227 of 2023

                         BETWEEN:-
                         RAJESH S/O KISHAN SINGH RAJPOOT, AGED ABOUT 46
                         YEAR S, OCCUPATION: FARMER VILLAGE BAMHORI
                         TEHSIL KESLI DISTRICT SAGAR MP (MADHYA
                         PRADESH)

                                                                                        .....PETITIONER
                         (BY SHRI R.K. KESHWARWANI-ADVOCATE )

                         AND
                         SUDHIR BHAI S/O SHRI VIJAY BHAI RAJPOOT, AGED
                         ABOUT 43 YEARS, OCCUPATION: BUSINESSMAN TEH
                         KESLI DISTRICT SAGAR MP (MADHYA PRADESH)

                                                                                      .....RESPONDENT
                         (BY SHRI ARVIND SONI- ADVOCATE)

                               This revision coming on for admission this day, th e court passed the
                         following:
                                                             ORDER

This civil revision has been preferred by petitioner/defendant challenging the order dated 30.07.2021 passed by Additional Judge to the Court of Additional District Judge, Deori in MCA No.9/19 affirming the order dated 24.07.2019 passed by Civil Judge Class-II, Deori in MJC No.1/2015, whereby learned Courts below have dismissed the petitioner/defendant's application under Order 9 Rule 13 read with section 151 of CPC filed for setting aside the ex-parte judgment and decree dated 24.11.2007 passed by Civil Judge Class-I, Deori, District Sagar in Civil Suit No. 48-A/2006. Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/5/2023 1:22:26 PM

2. Learned counsel for the petitioner submits that learned Courts below have erred in dismissing the application under Order 9 Rule 13 of CPC despite recording concurrent findings to the effect that summons was not served on the petitioner/defendant. He further submits that learned Courts below have taken into consideration the conduct of the petitioner/defendant after passing of the ex-parte judgment and decree, which is not relevant for deciding the application under Order 9 Rule 13 of CPC. Accordingly, he prays for allowing of the civil revision.

3. Learned counsel for the respondent/plaintiff submits that although copy of summons is not available in the original record of the civil suit but by

examination of the process server, the plaintiff has proved that service was effected on the defendant but he refused to accept and the learned Courts below have rightly considered subsequent conduct of the petitioner/defendant and rightly dismissed the application under Order 9 Rule 13 of CPC. He further submits that merely because the summons was not served properly cannot be a ground to allow the application under Order 9 Rule 13 of CPC because the petitioner/defendant had knowledge about the date of hearing and pendency of the civil suit as well as passing of the ex-parte judgment and decree.

4. Heard learned counsel for the parties and perused the record.

5. Learned appellate Court while dismissing the miscellaneous appeal has affirmed the order dated 24.07.2019 passed by Civil Judge Class-II, Deori and vide para 10 of its order, learned trial Court has observed that the summons in relation to the service of defendant is not available in the record file of civil suit and vide para 16 & 18 the Court has also observed that the defendant was not served with the summons of plaint but dismissed the application holding thereby that the defendant has failed to explain the delay in filing of the Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/5/2023 1:22:26 PM

application under Order 9 Rule 13 of CPC after passing of the ex-parte judgment and decree on 24.11.2007.

6. In my considered opinion, after holding by learned Courts below that the summons was not served on the defendant/petitioner, the application under Order 9 Rule 13 of CPC ought to have been allowed and ex-parte judgment and decree dated 24.11.2007 ought to have been set aside and in not holding so, learned Courts below have committed illegality in passing the impugned orders.

7. Resultantly, civil revision is allowed and the ex-parte judgment and decree dated 24.11.2007 is set aside with the further direction to learned trial Court to restore the civil suit on record and to proceed further from the stage when the defendant was proceeded ex-parte.

8. Parties are directed to appear before the trial Court i.e. Civil Judge Class-I, Deori on 17.04.2023.

9. With the aforesaid observation, this civil revision is allowed and disposed off.

10. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE sh

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 4/5/2023 1:22:26 PM