Rajasthan High Court - Jodhpur
Rajendra Kumar vs Smt. Nanda Bai (2023:Rj-Jd:43780) on 14 December, 2023
Author: Birendra Kumar
Bench: Birendra Kumar
[2023:RJ-JD:43780]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1212/2016
Rajendra Kumar S/o Birbal Prasad, aged 61 years, R/o Phalna
Station, Tehsil Bali, District Pali (Raj.)
----Appellant
Versus
Smt. Nanda Bai W/o Mohan Ram Ji, R/o Phalna Station, Tehsil
Bali, District Pali (Raj.)
----Respondent
For Appellant(s) : Mr. Aju V. Josh
For Respondent(s) : Mr. Manish Patel
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment
14/12/2023
1. Heard the parties.
2. By the impugned order dated 02.03.2016 passed in Civil
Misc. Case No.52/2010, the learned trial court refused to set aside
ex-parte decree dated 09.09.2008 passed in Civil Original Suit
No.13/2006.
3. In the application under Order 9 Rule 13 CPC, the case of the
appellant was that notice of the suit was never served on the
appellant. The respondents relied upon the fact that service of
notice on the appellant was effected under Order 5 Rule 15 CPC as
notice of the appellant was served on his brother-Narendra Kumar.
Order 5 Rule 15 CPC reads as follows:-
"Where in any suit the defendant is absent from his
residence at the time when the service of summons
is sought to be effected on him at his residence and
there is no likelihood of his being found at the
residence within a reasonable time and he has no
agent empowered to accept service of the summons
[2023:RJ-JD:43780] (2 of 4) [CMA-1212/2016]
on his behalf, service may be made on any adult
member of the family, whether male or female, who
is residing with him.
Explanation. - A servant is not a member of the
family within the meaning of this rule."
4. Thus, one of the important requirements to fulfill the
requirement of Order 5 Rule 15 CPC is that in absence of the
addressee to the notice, the same may be served upon any adult
member of the family, who is residing with him.
The case of the appellant is that the appellant was not
residing with his brother since last fifteen years as he was not
pulling well with his brother, therefore, service was not properly
effected. The appellant could know about ex-parte decree only on
process of attachment in execution of the ex-parte decree.
5. Learned counsel for the appellant submits that during inquiry
proceedings under Order 9 Rule 13 CPC, two witnesses, including
the appellant were examined and both stated that the appellant
was not residing at Falna along with his brother-Narendra Kumar
since last more than twelve to thirteen years as he was not pulling
well with his brother. The respondent produced only one witness,
who is process server and process server is hearsay on his
statement that the appellant was residing with his brother as the
process server heard this fact from Narendra Kumar, who was not
produced by the respondent in Court, therefore, statement of the
sole witness of the respondent is hearsay evidence.
6. The impugned order would reveal that the court below
doubted the statement of the appellant during inquiry for the
reason that the appellant had not stated about his present address
rather, in a wider term the appellant had stated that he is residing
[2023:RJ-JD:43780] (3 of 4) [CMA-1212/2016]
in Surat. However, no cross-examination was made to the
appellant regarding his actual place of residence at Surat.
7. Learned Court below further noticed that the appellant
admitted that the house and shop at Falna was joint family
property and appellant had also a share in the same and in the
past, he was running his business along with his brother.
For that reason only, the claim of the appellant should not
have been disbelieved that subsequently his relation with his
brother was not cool, therefore, he left the business at Falna and
settled at Surat.
8. Learned counsel for the respondent has relied on the
aforesaid material to oppose the prayer of the appellant and
asserts that it is the duty of the appellant to prove by cogent
evidence that he had actually left the place at Falna and was also
bound to prove his actual place of residence at Surat as well as
supporting document that the appellant was doing some job at
Surat.
9. The law is well settled that the civil dispute is decided on the
basis of preponderance of probabilities and not on proof of a case
beyond reasonable doubt. It was duty of the plaintiff and the
process server to prove the fact to the satisfaction of the Court
that service of summons on the appellant was properly made. If
Narendra Kumar would have appeared in the witness box and
stated that he was still residing with the appellant at the same
house, the matter would have been different. Furthermore, no
other witness appeared in the proceeding under Order 9 Rule 13
CPC to state that both the brothers were residing together in the
same house when service of notices were effected.
[2023:RJ-JD:43780] (4 of 4) [CMA-1212/2016]
Moreover, the ultimate result on setting aside of the ex-parte
decree would be that the lis between the parties would be decided
on merit to the satisfaction of the parties that they have got an
opportunity to be heard.
10. This Court is of firm view that the material available on
record leads to only inference that the requirement of Rule 15 of
Order 5 CPC to the extent that the appellant was residing with his
brother was not established, hence, service of notice on brother of
the appellant was not a proper service.
Accordingly, the entire proceedings of ex-parte hearing was
vitiated in law. Hence, the impugned order as well as ex-parte
decree passed in the suit stands hereby set aside only to the
extent of the appellant and this appeal is allowed.
11. Let the trial court proceed with the suit according to law at
the earliest. There is no need for further notice to the appellant as
order has been passed in presence of learned counsel for the
appellant. The appellant would appear before the trial court on the
date fixed by the trial court. In the facts and circumstances, the
appellant shall pay a cost of Rs.10,000/- to the respondent, failing
which it shall be recovered as fine.
(BIRENDRA KUMAR),J
161-Taruna/-
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