JAGJIT KHORANA Vs. RAJ KUMAR
HIGH COURT OF JAMMU AND KASHMIR
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(1.) THIS revision is directed against the judgment and order dated 08 -11 -2001 passed by the learned IInd Additional District Judge, Jammu in File No. 46 -A Appeal, rejecting the appeal of the present petitioner
against the judgment and order dated 16 -01 -2001 passed by learned
Sub -Registrar, Munsiff, Jammu, refusing to set -aside the exparte decree
passed against the petitioner.
(2.) BRIEFLY stating the facts as emerge from the record, are that; The petitioner was a tenant of Smt. Krishana Kumari Widow of late
Sh. Amar Nath. Satya Devi, Raj Kumari and Kamla Devi daughters of late
Sh. Amar Nath in the premises comprising of one shop and building
constructed on four shops on the first floor situate at Mohalla Partap
Garh, Jammu. There appears to be a dispute of non -payment of rent for
which the petitioner claims to have deposited the rent before the Rent
Controller. However, these facts are not relevant for the disposal of
present revision petition.
(3.) IN so far as the controversy in the present revision is concerned, it released to setting aside of ex -parte decree passed against
the petitioner on 18 -11 -1996 in an eviction suit filed by the respondent
in the Court of learned Sub -Registrar Munsiff, Jammu. The suit was
instituted on 2nd of September, 1995 which resulted in passing of the
exparte decree on 18 -11 -1996. On acquiring the knowledge of the exparte
decree the present petitioner preferred an application under Order -9 Rule
- - 13 CPC for setting aside the ex -parte decree on 22 -08 -1997. This
application came to be registered as file No. 149/Misc. The trial Court
after inviting objections from the respondent, allowing the parties to
lead evidence and bearing, rejected the application for setting of the
ex -parte decree vide its order date 16 -01 -2001. An appeal preferred there
from before the learned IInd Additional District Judge, Jammu also failed
having been dismissed vide order dated 08 -11 -2001. It is under aforesaid
circumstances, the petitioner has come to this Court by invoking
revisional jurisdiction for setting aside the aforesaid orders.
I have heard the learned counsel for the parties at length and perused the record.
It is relevant to notice some of the dates and the proceedings of
the trial Court wherein ex -parte decree was passed. The suit came to be
instituted on 22nd Sept. 1995 and the defendant was ordered to be served.
Defendant was not served for number of hearings and on 12 -12 -1995, the
Court directed issuance of "Doparta" (duplicate) summons and the next
date fixed on 15 -01 -1996. On 15 -01 -1996 it is recorded that one copy of
the summons has been pasted on the door of the defendant and next date
was fixed for recording the statement of the Process Server on
18 -01 -1996. Statement of Process Server could only be recorded on 13 -07 -1996 after eleven adjournments. The Court proceeded to initiate exparte proceedings on 03 -08 -1996. It is recorded in this order that the
Statement of the process Server stands recorded, hence defendant set
ex -parte. Advocate of plaintiff was directed to lead ex -parte evidence.
The evidence of the plaintiff was concluded on 10 -08 -1996 and ex -parte
decree for eviction came to be passed on 18 -09 -1996. On the record of the
trial court there are four summons. First summon is dated 04 -09 -1995
along with carbon copy for appearance of the defendant on 18 -09 -1995 and
one Amar Singh Process Server was deputed to effect service. A report is
made by this Process Server on the back of the summon that he visited the
defendant on the given address. However, he was not available at Home and
his family members avoided service. He prayed for orders of pasting the
summons. Third summon is dated 05 -12 -1995 alongwith carbon copy for
appearance on 12 -12 -1995. This summon contains a report dated 11 -12 -1995
by one Saifu -Din. Process Server stating that he visited the defendants
house on the identification of plaintiff and the defendant has refused to
acknowledge the summon. He was informed of the date, name and place of
the Court. It is relevant to note that all the summons contained the name
of the Court at the Top, title of the case Raj Kumar v. Kartar Singh
Khorana. As far as the nature of the suit is concerned what is mentioned
is only "Suit". Thereafter name, son of and address of the defendant is
given. The defendant has been ordered to appear for defence and written
statement in the Court personally or through an Advocate on 12 -12 -1995.
Statement of Process Server was recorded on 30 -07 -1996. It is useful to
notice his statement. He stated: -
"I went to the house of Kartar Singh situated at Mohalla Partap
Garh for effecting service on him. He was not available at Home and one
copy of summon was pasted on his residential premises (Rihashgaha). Prior
to that I went to serve him but he refused to acknowledge the summon".;
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