K. P. Singh, J. - (1.) THIS is a defendants' First Appeal From order against order dated 5-1-1989 passed by the 5th Addl. Civil Judge, Varanasi in Misc. Case No. 59 of 1987 Prem Chandra v. Obeetee Pvt. Ltd., whereby their application for setting aside the ex parte judgment and decree dated 3-12-1986 had been dismissed.
(2.) SHORN of unnecessary details, the plaintiff's suit was dismissed on 21-1I-1985 in the absence of the parties. Thereafter, the suit was restored to its original number on 11-4-1986. It appears that the plaintiff's suit has been decreed on 3-12-19a6 ex parte. On 27-5-1987, the defendants filed an application for setting aside the ex parte decree dated 3-12-1986 alleging that the defendants' counsel was not served with any notice about the date in the case after the restoration of the suit on 11-4-1986 and that the plaintiff had obtained service against the defendants through publication on wrong facts. The defendants came to know of the ex parte decree on 24-5-1987 through a representative of the plaintiff and thereafter got the file inspected on 27-5-1987. On the aforesaid fact, the defendants prayed for setting aside the ex parte decree dated 3-12-1986 against them. (See Annexures '2' attached with the stay application)- The claim of the defendants for setting aside the ex parte decree was contested on behalf of the plaintiff as is evident from Annexure '3' attached with the stay application in the above appeal. The trial court through the impugned order dated 5-1-1989 has refused to set aside the ex parte decree against the defendants ; hence aggrieved by that order the defendants have approached this court through the abovenoted first appeal from order. Learned counsel for the appellants has contended before us that the plaintiff has got service of the summons against the defendents through publication on wrong facts and that the trial court has acted illegally in permitting substituted service upon the defendants in the facts and circumstances of the case aad it has acted illegally in dismissing the application for setting aside the ex parte decree against the defendants. The reasons given by the trial court in the impugned order are all wrong. Therefore, the impugned order should be set aside and the ex parte decree should also be set aside against the defendant-appellants and the suit should be restored to its original number
(3.) LEARNED counsel for the plaintiff-respondent has tried to refute the contentions raised on behalf of the defendants-appellants and has asserted that the conduct of the defendants in this case is such that every time the defendants had been served through publication (substituted service). Therefore, the trial court has arrived at correct conclusion and has rightly refused to set aside the ex parte decree against the defendants The learned counsel for the plaintiff-respondent has also emphasised that that in the facts and circumstances of the case, if the ex parte decree is set aside, it should be subject to heavy cost. We have considered the contentions raised on behalf of the parties and we have perused the impugned judgment. The first, ground for rejecting the claim of the defendants given by the trial court is to the effect that the defendants did not file any rejoinder-affidavit to the counter-affidavit filed by the plaintiff-respondent opposing the application for setting aside the ex parte decree True, that the defendant-appellants had not filed rejoinder-affidavit, but the trial court has acted illegally in not examining the worth of the counter affidavit filed by the plaintiff-respondent and placing reliance upon the allegations in the counter-affidavit. R. A 1 to the rejoinder-affidavit filed in this case is the copy of the affidavit filed on behalf of the plaintiff-respondent opposing the defendants' application for setting aside the ex parte decree. The verification clause in the affidavit indicates that the deponent has not sworn the affidavit strictly in accordance with the rules. It has been stated in the verification clause that the contents of the affidavit from paragraph 1 to 12 are true to the personal knowledge and belief of the deponent. It has not been indicated which part is based on personal knowledge and which part is based on belief. Therefore, the affidavit filed on behalf of the plaintiff respondent is defective and this aspect of the matter has escaped the notice of the trial court while it placed reliance upon the affidavit in discrediting the claim of the defendant-appellants. In our opinion, the affidavit filed on behalf of the plaintiff-respondent is no affidavit in the eye of law. Therefore, the trial court acted illegally is not placing reliance upon the allegations made by the defendants in the affidavit filed in support of their application for setting aside the ex parte decree.;