Rajasthan High Court - Jodhpur
Navneet Shah vs Mool Chand (2025:Rj-Jd:15283) on 21 March, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:15283]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1077/2022
Navneet Shah S/o Shri Gola Bhai Shah, Aged About 57 Years, R/
o 501/nihar, Khokhani Lane, Ghatkopar East, Mumbai- 400077.
----Appellant
Versus
1. Mool Chand S/o Shri Bahadur Mal, B/c Oswal Jain, R/o
460, Shubhash Nagar Second, Pal Road, Jodhpur. (Raj.)
2. Mahaveer Kumar Jain S/o Shri Rikhab Chand Jain, B/c
Jain, R/o B-103, Mitthu Park, Chala, Vapidam Road, Vapi,
District Balsar (Gujrat)
----Respondents
For Appellant(s) : Mr. Kishan Lal Bansal
Mr. Deepak Bansal
For Respondent(s) : Mr. Harshit Bhurani
HON'BLE MS. JUSTICE REKHA BORANA
Order
21/03/2025
1. The present appeal has been filed against the order dated
07.05.2022 passed by the District Judge,
Jodhpur Metropolitan, Jodhpur in Civil Misc. Case No.50/2021
whereby the application under Order 9 Rule 13, CPC as filed on
behalf of applicant-defendant No.1 was dismissed.
2. Vide the application, it was submitted on behalf of the
applicant that the notice/summons in the suit were never served
on him and therefore, he could not appear before the learned Trial
Court on the date fixed for hearing. It was submitted that the
plaintiff intentionally filed the wrong address of applicant-
defendant No.1 whereas he did not reside on said address. On the
said address i.e. A-2/20, GDDIDC Somnath Industrial Estate,
Daman (U.T) a factory in the name of 'National Traders' was
running whereas the factory of the applicant was situated/running
at A-2/21 with the name of 'Apple Polymers'. The manager and the
[2025:RJ-JD:15283] (2 of 9) [CMA-1077/2022]
labourers of the applicant worked in the said factory i.e. 'Apple
Polymers' and he himself had his business in the name of 'Popular
Stores' at the address mentioned at Mumbai. Therefore, the notice
as served by the plaintiff in the suit proceedings on the address at
A-2/20 cannot be termed to be a proper service on applicant.
3. It was further submitted that even the report of the process
server was to the effect that the applicant was not found on the
said address. It is only when the notice in the execution
proceedings was served on him that he came to know about the
decree dated 02.09.2020. It was submitted that co-incidentally he
was available at Daman on 02.01.2021, the date when the notice
of the execution proceedings was delivered at 'National Traders'
and the staff of 'National Traders' handed over the same to him.
Soon after the said receipt, he applied for the certified copies of
the relevant documents and on 27.01.2021, filed the application
under Order 9 Rule 13, CPC along with application under Section 5
of the Limitation Act for condonation of delay.
4. With the above averments, a prayer to set aside the ex parte
decree dated 02.09.2020 was made.
5. The learned Trial Court while proceeding on to dismiss the
application, recorded the following findings:-
(i) As per the track status of the notice sent through registered
post, the notices/summons as sent to defendant No.1-Navneet
Shah were delivered on 06.06.2019. It was after more than a
period of two months of the said report that the order to proceed
ex parte was passed.
[2025:RJ-JD:15283] (3 of 9) [CMA-1077/2022]
(ii) Further, the decree was passed on 02.09.2020, that is,
approximately after a period of one year from 06.06.2019 i.e. the
date of service of notice on defendant No.1.
(iii) Report dated 14.08.2019 of the Superintendent of the Civil
Court, Daman also reflected the notice to have been served on
defendant No.1.
(iv) The notices issued in execution proceedings No.260/2020
were served on the applicant on 21.12.2020 on the same address
as reflected in the plaint.
(v) No document in support of the application under Order 9
Rule 13, CPC was filed on behalf of the applicant.
(vi) No sufficient reason for delay in filing the application under
Order 9 Rule 13, CPC was assigned and hence, the delay was
uncondonable.
6. Learned counsel for the appellant submitted that the findings
as recorded by the learned Trial Court are totally erroneous as not
a single document was available on record before the Court to
reveal that the plaintiff had anything to do with the factory
premise situated at A-2/20. To substantiate his submission,
counsel relied upon certain documents annexed along with the
stay application as filed by him. Learned counsel submits that the
said documents reveal that defendant No.1 was a partner of the
firm 'Apple Polymers' situated at A-2/21 and not of 'National
Traders' situated at A-2/20. The 'list of partners' of both the firms
have been annexed along with the stay application.
7. Counsel further submitted that the notices/summons in the
suit proceedings were never served on defendant No.1 and he
came to know about the ex parte decree dated 02.09.2020 for the
[2025:RJ-JD:15283] (4 of 9) [CMA-1077/2022]
first time when notice in execution proceedings was served on
him. Therefore, the ex parte decree deserves to be set aside.
8. Learned counsel for the appellant, in support of his
submissions, relied upon the following judgments:
(i) C.K. Lokesh Vs. P.E. Panduranga Naidu; (1996) 11 SCC
353.
(ii) In Re: Cognizance for Extension of Limitation; (2022)
3 SCC 117.
(iii) Rabindra Singh Vs. Financial Commissioner,
Cooperation, Punjab & Ors.; (2008) 7 SCC 663.
(iv) Amritpal Kaur Vs. Sanjay Bhakar & Anr.; S.B. Civil Misc.
Appeal No.1145/2022 (decided on 22.07.2022)(Rajasthan High
Court).
9. Per contra learned counsel for the respondent-plaintiff
submitted that defendant No.1 was very much connected with the
firm- 'National Traders' situated at A-2/20. He submitted that in
the complete application under Order 9 Rule 13, CPC defendant
No.1 has not even denied the said fact and has nowhere stated
that he was not connected in any manner with National Traders.
In support of his submission, counsel relied upon certain
documents annexed along with the reply to the stay application.
First is the postal receipt of a registered post sent by one 'Unify
and Unify machine tools' addressed to defendant-Navneet G Shah
on the address of A-2/20 and the track status of the said post
reflecting the item to have been delivered to the addressee i.e. Mr.
Navneet Shah. Second is the copy of the web-page of firm
'National Traders' reflecting its proprietor to be Navneet G Shah.
[2025:RJ-JD:15283] (5 of 9) [CMA-1077/2022]
10. Counsel further submitted that even the track status of
registered notices as sent in the suit proceedings reported the
notice to have been delivered on the addressee and hence, the
finding of the learned Trial Court to the effect that the notice was
duly served, does not deserve any interference.
11. Counsel lastly submitted that the service of notices in the
execution proceedings on defendant No.1 on the same address
leaves no doubt that A-2/20 was also one of the business places of
defendant No.1 and the notice had been duly served on him on
the said address.
12. Heard the counsels and perused the record.
13. A bare perusal of the order dated 17.08.2019 in the suit
proceedings makes it clear that the Court directed to proceed ex
parte against defendant No.1 on the premise that as per the
delivery track status of the registered notice sent to defendant
No.1, the same was delivered on 06.06.2019. Despite of the said
registered notice been served, none appeared for defendant No.1
and hence, Court proceeded ex parte against him. For ready
reference, the order sheet dated 17.08.2019 is reproduced as
under:
"vf/koDrk oknh mifLFkrA
izfroknh la[;k 2 egkohj dqekj dh vksj ls odhy Jh
fodkl jkBh us vk;Unk odkyrukek is"k djus dh
v.MjVsfdax nhA tokcnkok gsrq le; pkgkA izfroknh
la[;k 1 uouhr dks jft- uksfVl Hkstus dh jlhn o uksfVl
Delivery jftLVªh भी is"k dh tks "kkehy i=koyh gksA
izfroknh la[;k 1 dks Delivery Track ds vuqlkj 6-6-19
dks leu izkIr gks pqdk gSA 2 ekg ls vf/kd dk le; gks
[2025:RJ-JD:15283] (6 of 9) [CMA-1077/2022]
pqdk gSA izfroknh la- 1 vkt vuqifLFkr gSA mldh vksj ls
vkt dksbZ mifLFkr ughaA izfroknh dks lqcg ls vkokts
yxokbZ tk jgh gSA bl le; 4-00 Pm gks pqds gSA vr%
izfroknh la[;k 1 ds fo:) ,d i{kh; dk;Zokgh vey esa
ykbZ tkrh gSA i=koyh okLrs tokc nkok izfroknh la[;k 2
gsrq fnukad 6-9-19 dks is"k gksA"
14. The postal receipt dated 04.06.2019 and the Track report
dated 06.06.2019 of the said consignment, as available on record
reflects the report "Item Delivery Confirmed". Meaning thereby,
the notice sent through registered post was received served on
the address as mentioned.
15. However, the report of the process server on the notice sent
through ordinary post, was to the effect that the addressee was
not available in town. Therefore, the report dated 14.08.2019 of
the Superintendent, Civil Court, Daman to the effect that
summons/notices returned duly served, cannot be said to be
correct.
16. But then, this Court cannot be oblivious of the fact that the
report of the process server does not state that the address was
incorrect or that no person of the name (Navneet Shah) was
available on the address. The report only stated the addressee not
to be available in town at that point of time.
Meaning thereby, it cannot be concluded that defendant No.1
had nothing to do with 'National Traders' and the address as
reflected by the plaintiff in the plaint was incorrect.
17. The above opinion of this Court is strengthened by the
documents as placed on record by learned counsel for the plaintiff
along with the stay application and the written submissions. The
[2025:RJ-JD:15283] (7 of 9) [CMA-1077/2022]
web page of firm 'National Traders' reflects Navneet G Shah to be
the proprietor of the said firm and the address of the firm in the
said web page is reflected to be "A-2/2020 GDDIDC, Somnath
Industrial Estate, Daman" i.e. the same address as reflected in the
plaint. Interestingly, the said document has not been controverted
by the appellant.
18. During the course of arguments, when the above document
was pointed out, this Court directed learned counsel for the
respondent to open the web page of the firm 'National Traders'
before the Court. The same was done in the presence of learned
counsel for the appellant and a bare perusal of the same reflected
that Navneet G Shah has been shown to be the proprietor of the
firm 'National Traders' and address of the firm is also reflected to
be "A-2/2020 GDDIDC, Somnath Industrial Estate, Daman".
Learned counsel for the appellant was not in a position to
explain/clarify/justify the above fact.
19. Further, the receipt of the notice in the execution
proceedings by defendant No.1 himself is not disputed. The reason
as assigned by defendant No.1 of him being available on the said
date coincidentally and been handed over the post by the staff of
'National Traders', cannot be said to be tenable.
Had the staff of 'National Traders' handed over the notice of
execution proceedings to him, there is no reason as to why the
earlier summon/notice of the suit proceeding would not have been
handed over to him. Furthermore, had the notice been handed
over by any staff of 'National Traders' to Navneet G Shah, the
report of the postman would not have reflected the notice to have
been delivered to Navneet G Shah.
[2025:RJ-JD:15283] (8 of 9) [CMA-1077/2022]
20. In view of the above facts, it is crystal clear on record that
'National Traders' is also one of the business places of defendant
No.1 and it cannot be concluded that he had nothing to do with
the said firm.
21. Even relying on the documents as placed on record by the
appellant himself, a bare perusal of the 'list of partners' of both
the firms reveal that they are closely related.
22. In overall anyalysis, this Court is of the clear opinion that
even if it is assumed that there was irregularity in the service of
summon on defendant No.1, it cannot be concluded that he was
not aware of the present suit proceedings and did not have any
notice of the date of hearing.
23. As held by Hon'ble Apex Court in the case of Sunil Poddar
and Ors. Vs. Union Bank of India; (2008) 2SCC 326 an ex-
parte decree cannot be set aside even if it is established that there
was irregularity in service of summons. Therein the Court
observed that if the Court is convinced that the defendant had
otherwise knowledge of the proceedings and he could have
appeared and answered the plaintiff's claim, he cannot put
forward the ground of non-service of summons for setting aside
ex-parte decree passed against him by invoking Rule 13 of Order
9, CPC of the Code.
24. So far as the judgments relied upon by learned counsel for
the appellant are concerned, the same are clearly distinguishable
as Rabindra Singh (supra) was a case wherein the publication of
the summon for substituted service on the defendant was not
made in a newspaper circulated in the City/State where the
defendant resided. Amritpal Kaur (supra) was a case wherein the
[2025:RJ-JD:15283] (9 of 9) [CMA-1077/2022]
matter was transferred to some other Court and no adequate
information of the same was given to the defendant. It is in those
circumstances, the Court held that there was a sufficient cause for
non appearance of the defendant therein on the date fixed for
hearing.
25. In view of the above overall analysis and observations, it
cannot be concluded that there was no proper service of notice on
defendant No.1 in the suit proceedings. The averment made on
behalf of defendant No.1 to the effect that he came to know about
the decree dated 02.09.2020 only after service of the notice in the
execution proceedings cannot be relied upon. The finding as
recorded by the learned Trial Court being totally in consonance
with law and material available on record does not deserve any
interference and the appeal is hence, dismissed.
26. Stay petition and pending applications, if any, stand
disposed of.
(REKHA BORANA),J
310-manila/-
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