Bela M. Trivedi, J. - (1.) THE present petition has been filed by the Petitioner (original Plaintiff) under Article 227 of the Constitution of India challenging the order dated 6.10.2009 passed by the Additional Civil Judge (Jr. Division) No. 2, Alwar (here -in -after referred to as the 'trial court'), whereby the application under Order 9 Rule 13 of Code of Civil Procedure filed by the Respondent No. 1 (original Defendant) has been allowed and the judgment and ex -parte decree dated 18.11.2008 passed in Civil Suit No. 34/18/2008 has been set -aside.
(2.) THE short facts giving rise to the present petition are that the Petitioner (original Plaintiff) had filed a suit against the Respondent No. 1 (original Defendant) seeking possession of the disputed premises in the Court of Civil Judge (Jr. Division) No. 2, Alwar. According to the Petitioner -plaintiff, though the Defendant was duly served, he did not choose to appear before the said court and therefore, an ex -parte decree came to be passed against the Defendant on 18.11.2008. The Respondent -defendant thereafter moved an application under Order 9 Rule 13 seeking setting aside of the said ex -parte decree. The trial court, after hearing the learned Counsel for the parties, passed the order dated 6.10.2009 allowing the said application under Order 9 Rule 13 and set -aside the ex -parte decree dated 18.11.2008 passed earlier in the suit after awarding cost of Rs. 1000/ - to the Petitioner. Being aggrieved by the said order, the Petitioner -plaintiff has filed the present petition. During the course of the pendency of the present petition, the original Petitioner has expired and his heirs have been brought on record. It has been submitted by the learned Counsel for the Petitioners that the Respondent, who was the Defendant in the suit, was duly served inasmuch as the son of the Respondent having refused to accept the summons issued by the court, the process server had affixed the said summons on the residential premises of the Defendant, and the report was also submitted by the process server to the said effect before the concerned court. According to him, the Defendant having failed to appear before the court, though duly served, the court had proceeded ex -parte against the Defendant and after taking into consideration the evidence laid by the original Plaintiff, the ex -parte decree was passed. He also submitted that the application for setting aside the ex -parte decree was also not presented within the prescribed time limit and even otherwise there was no sufficient cause to set -aside the said ex -parte decree.
(3.) HOWEVER , the learned counsel for the Respondent -defendant, placing reliance on the provisions contained under Order V, more particularly Rule 6 and 17 of Order V. Code of Civil Procedure, submitted that there was no proper service effected on the Defendant, as contemplated in the said Order and the court could not have proceeded ex -parte. According to him, the trial court, after considering the facts and circumstances of the case and the record of the suit, had come to the conclusion that there was no proper service effected on the Defendant and, therefore, set -aside the ex -parte decree passed against the Defendant.;