- (1.) The challenge in the present petition is the order dated 13.7.2012 passed by the Addl. District & Sessions Judge, No.2, Deeg, Bharatpur (hereinafter referred as the trial court ) in Civil Suit No. 23 of 2009 (35 of 2008), whereby the trial court has partly allowed the application of the petitioner-original defendant No.2 filed under IX Rule 7 of CPC. With the consent of learned counsels for the for the petitioner and for the contesting respondent No.2, the petition is finally heard at the admission stage. Notices to the other respondents being performa are waived.
(2.) The short facts giving rise to the present petition are that the respondents No. 2 to 8-original plaintiffs have filed the suit seeking damages against the petitioner and the respondent No. 9 to 13 (original defendant Nos 1 to 6), under the Fatal Accidents Act. In the said suit, summons were issued to the petitioner who was at the relevant time, in judicial custody at the Central Jail, Sewar, Bharatpur. It appears that the said summons were served by registered post and the trial court considering the acknowledgment receipt treated the said service as sufficient service of summons and proceeded ex parte against the petitioner. The petitioner thereafter having come to know about the said ex parte proceedings, submitted an application under Order IX Rule 7 of CPC on 5.6.2005 stating interalia that he was never served with summons in the jail and the service could not be said to be proper service. The said application was partly allowed by the trial court vide the impugned order, by which the trial court permitted the petitioner-defendant only to participate in the further proceedings of the suit, however declined him the opportunity to file any written statement. Being aggrieved of the said order, present petition has been filed under Article 227 of the Constitution of India.
(3.) It has been sought to be submitted by learned counsel Mr. RK Daga for the petitioner that the petitioner was never served with the summons in the jail and the trial court committed an error in treating the service of summons to the jail authority as the sufficient service to the petitioner and in proceeding exparte against the petitioner. He also submitted that though the trial court had observed that the summons should have been sent through jail superintendent and the same was not sent as such, the trial court further committed error in treating such service of registered post addressed to the jail authority as the sufficient service. According to Mr. Daga, the petitioner was required to be given opportunity to contest the suit by permitting him to file written statement and to lead the evidence. As against this, the learned counsel Mr. Bharat Saini for the respondent No.2, who is the contesting respondent submitted that the petitioner had not come with clean hands inasmuch as other defendants are the brothers and relatives of the petitioner who had already appeared in the suit and that the petitioner was on parole during the period from 16.5.2012 to 4.6.2012 and therefore it was not believable that the petitioner came to know about the exparte proceedings against him only on 5.6.2012. He has relied upon the decision of the Apex Court in the case of Rasik Lal Manikchand Dhariwal and another vs M.S.S. Food Products, 2012 2 SCC 196, to submit that the application of the petitioner under Order IX Rule 7 was not maintainable.;