Pawanbai vs Vikramsingh
2024 Latest Caselaw 5605 MP

Madhya Pradesh High Court

Pawanbai vs Vikramsingh on 23 February, 2024

Author: Anil Verma

Bench: Anil Verma

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                       BEFORE
                                           HON'BLE SHRI JUSTICE ANIL VERMA
                                              ON THE 23 rd OF FEBRUARY, 2024
                                                CIVIL REVISION No. 347 of 2022

                           BETWEEN:-
                           PAWANBAI W/O KALUSINGH RAJPUT, AGED ABOUT 60
                           Y E A R S , OCCUPATION: AGRICULTURIST,   R/O:
                           BULGARA, TEHSIL BADNAWAR, DIST. DHAR (MADHYA
                           PRADESH)

                                                                                              .....APPLICANT
                           (SHRI AMISH SANGHVI - ADVOCATE)

                           AND
                           1.    VIKRAMSINGH S/O UMRAOSINGH, AGED ABOUT
                                 60 YEARS, OCCUPATION: AGRICULTURIST, R/O:
                                 BULGARA, TEHSIL BADNAWAR, AT PRESENT -
                                 CHINTAMAN GANESH, UJJAIN, DIST. UJJAIN
                                 (MADHYA PRADESH)

                           2.    NEPALSINGH S/O KALUSINGH, AGED ABOUT 40
                                 YE A R S , OCCUPATION: AGRICULTURIST, R/O:
                                 BULGARA, TEHSIL BADNAWAR, DIST. DHAR
                                 (MADHYA PRADESH)

                                                                                          .....RESPONDENTS
                           (SHRI VIKAS YADAV - ADVOCATE FOR RESPONDENT NO.1.)

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

Applicant has preferred this civil revision under Section 115 of CPC, being aggrieved by the impugned order dated 13.05.2022, whereby the Additional District Judge, Badnawar, Dist. Dhar (M.P.) has dismissed the Misc. Civil Appeal No.02/2019 filed by the applicant.

2. The facts of the case are that respondent No.1 / plaintiff has filed a suit

for declaration, partition and injunction against the present applicant and respondent No.2. The suit was ex parte decreed in favour of respondent No.2. The applicant came to know about decreeing the suit ex parte when the publication was published by Tehsildar. Then he preferred an application under Order 9 Rule 13 of CPC for setting aside the ex parte decree on the ground that summon was not duly served before the Civil Judge Class I, but trial Court has dismissed his appeal vide order dated 12.01.2019, then he preferred a Misc. appeal, but same has also been dismissed. Thereafter, he preferred the present revision before this Court.

3. Learned counsel for the applicant submits that impugned order passed

by the Court below is against the law and facts. The process serving Officer never went to the house of applicant. Respondent No.1 never carried out the statement of serving officer and the person, who has identified the applicant. Applicant has submitted substantive piece of evidence in support of his pleadings, but trial Court has rejected his application under Order 9 Rule 13 of CPC and same was erroneously upheld by the appellate Court also. Impugned order passed by both the Courts below are against the law and facts. Hence, he prays that impugned order passed by both the Courts below be set aside.

4. In support of his contention, counsel for the applicant placed reliance upon the judgment in the case of Mohan Vs. Kamal 2018 (2) MPLJ 337.

5. Per contra, learned counsel for the respondent No.1 opposes the prayer and prayer for its rejection by submitting that impugned order passed by the Court below is just and proper and does not deserve for any interference.

6. Counsel for both the parties heard at length and perused the entire record.

7. From perusal of the record, it reveals that respondent No.1 / plaintiff has filed a suit for declaration, partition and injunction. Applicant Pawanbai, who is living with her adult son before the trial Court admits that respondent No.1 Vikram Singh has filed a suit against her and her son respondent No.2 Nepalsingh. Her process server Sunil Kumar has categorically stated in his statement that when he went for service of notice (Ex.D-5 and D-6), then he met the applicant Pawanbai, who denied to accept the notice by stating that her son will come and he will take the notice, therefore, he has submitted a service report. Nothing has been found on record to disbelieve the statement of process server Sunil Kumar.

8. It is also admitted facts that applicant Pawanbai was residing with her son respondent No.2 Nepalsingh. Nepalsingh appeared before the trial Court and appointed a counsel, therefore, it is quite clear that applicant was also aware with the service of notice and litigation pending before the trial Court against her.

9. The trial Court has rightly evaluated the evidence available on record in its right perspective, which is well considered by the first appellate Court. The service upon the applicant was found valid service as per the provision of Order 5 Rule 15 to 18 of CPC.

10. Applicant was remained absent after service of the notice, therefore,

ex parte decree has been directly passed against her. The aforesaid citation filed by the applicant is not applicable in the instant case. Impugned order passed by both the Courts below appears to be just and proper and no perversity or illegality is found in the impugned orders, which requires any interference.

11. Accordingly, this revision being devoid of merit substance is hereby

dismissed.

Certified copy as per rules.

(ANIL VERMA) JUDGE Anushree