BHAGABAN MISRA Vs. SK. SULEMAN AND ORS.
HIGH COURT OF ORISSA
Sk. Suleman And Ors.
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B.K. Ray, J. -
(1.) THIS revision is directed against an order restoring a suit under Order 9, Rule 13 Code of Civil Procedure at the instance of Defendant No. 2. The suit was filed by the Plaintiff -Petitioner against several Defendants including Defendant No. 2 bearing T.S. No. 333 of 1964 for a permanent injunction in respect of the properties which had fallen to his share in an amicable partition in the year 1932. Defendant Nos. 8, 10, 13, 15 and 16 contested the suit and the rest including Defendant No. 2 who is the opposite party here remained ex parte. After hearing, judgment in the suit was pronounced on 30 -9 -1969 and the decree was drawn up on 31 -10 -1969. Defendant No. 2 thereafter filed an application under Order 9, Rule 13 Code of Civil Procedure (Vide Misc. Case No. 46 of 1959) on 29 -10 -1969 and this is within 30 days from the date of pronouncement of the judgment in the suit itself.
(2.) THE main ground in the petition of Defendant No. 2 is non -service of suit summons on him. According to him, he knew of the suit after its disposal on 26 -10 -1969 from the Petitioner who gave out that he had obtained a decree. This application was resisted by the Plaintiff -Petitioner on several grounds, viz., that summons in the suit had been duly served on Defendant No. 2; that Defendant No. 2 had knowledge of the suit long before commencement of the hearing and that he had appeared in Misc. Appeal No. 61 of 1966 which had arisen out of the suit itself relating to a matter of interim injunction and had filed vakalatnama in the said Misc. Appeal on 21 -6 -1966. The Court below, after consideration of the entire evidence or record, has recorded the findings that service of summons on Defendant No. 2 was not made; that Defendant No. 2 by the date of hearing of the suit ex parte against him was aware of the suit and had avoided to appear and contest the same and that the proviso to Sub -rule (1) of Order 9, Rule 13 Code of Civil Procedure as amended in Orissa does not apply.
(3.) MR . P.C. Misra, learned Counsel for Petitioner urges that the Court below having recorded a finding that Defendant No. 2 had knowledge of the suit before it was taken up for hearing, it should have further held on the evidence on record that there was due service of notice on him (Defendant No. 2) and that the discrepancies in the evidence regarding service of summons as pointed out by the Court below are only irregularities as contemplated in the proviso to Sub -rule (1) of Order 9, Rule 13, Code of Civil Procedure (Orissa amendment).;
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