Santosh Kumar Phaujdar, J. - (1.) THROUGH the present writ petition, the petitioner seeks a writ of certiorari for quashing the judgment and order dated 27.10.1999 recorded by the IXth Additional District Judge, Agra, in Misc. Appeal No. 180 of 1999 as per Annexure No. 14 to the writ petition. The petitioner has been the defendant in Suit No. 25 of 1995 which was decided ex -parte in his absence on 3.4.1997. The decree was put to execution on 16.5.1997 and while the execution was pending the petitioner moved an application on 28.7.1997 under Order IX, Rule 13 of the C.P.C. for setting aside the ex -parte order. A plea was taken by him that in the concerned suit no summons was ever tendered to him nor served nor was any such summons refused by him and if at all there was any report of service that was a forged and made to order one. That plaintiff decree -holders filed an objection and rejoinder affidavit was also filed by the petitioner. The trial Judge heard the evidence led on behalf of the parties and came to the conclusion that summons had been served on the petitioner Rakesh Kumar, and he failed to appear in the Court and it was further held that the application under Order IX, Rule 13 of the C.P.C. was presented beyond the period of limitation without any application for condonation of delay. The application under Order IX, Rule 13 of the C.P.C. was disallowed. The petitioner then filed the concerned miscellaneous appeal and the Appellate Court also dismissed the contention of the petitioner and had dismissed the appeal on 27.10.1999 whereafter the present writ petition has been moved.
(2.) THE learned counsel for the petitioner took me through the General Order (Civil) to say how a summons is to be served. It was further stated that in the summons the endorsement of receipt was written by somebody and even according to the process server only the signature was of the petitioner and the summons did not indicate whether it was for settlement of issues or for disposal of the suit. Two experts were examined on behalf of the two parties and each had opined in favour of the party calling him. The Court had examined the documents and opined that the signature purporting to be of Rakesh Kumar was really of the present petitioner. The writ petition was contested by the plaintiffs -respondents and the learned Counsel had submitted that the scope of Order IX, Rule 13 of the C.P.C. was limited to the extent of a decision if at all the summon was duly served or not and the only plea there was taken by the petitioner that he did not sign it. On that limited issues there had been two consistent findings by the Courts below and the writ Court would not interfere on this consistent finding of fact. It was further submitted that the question of improper service would again be irrelevant if the Court was satisfied that the defendant had notice of the date of the hearing and had sufficient time to appear and answer the plaintiffs claim despite an irregularity in the service of the summons. Article 123 of the Limitation Act gives the period of limitation of 30 days for an application for setting aside ex -parte decree and the period of limitation is to be reckoned from the date of the decree or where summons was not duly served, when the applicant had knowledge of the decree. Even though it is conceded that the applicant had a knowledge of the decree only during the execution proceeding and in that light it is held that his application was not barred by limitation, the petitioner is always obliged to indicate that the notice or summons was not duly served on him and this must be read with the second proviso to Order IX, Rule 13 of the C.P.C. which imposes a bar upon the Court to set aside the decree passed ex -parte, merely on the ground that there had been an irregularity in the service of summons, if the defendant had notice of the date of the hearing and had sufficient time to appear and answer the plaintiffs claim.
(3.) THE learned Counsel for the petitioner had argued that the summons was not issued in terms of the General Order (Civil) and that the summons did not indicate whether the suit was fixed for settlement of issues or for disposal. It was also contended that no neighbour was examined nor was there any identification of the person on which summons was purported to have been served. Moreover, there were two dates mentioned in the summons.;