- (1.) THE present appeal has been filed by the appellant-defendant under Order XLIII Rule 1 of CPC challenging the order dated 27.9.2008 passed by the Addl. District and Sessions Judge No.1, Deeg in Civil Misc. Application No.56 of 2007 filed by the appellant-defendant under Order IX Rule 13 of CPC, whereby the trial court has dismissed the said application.
(2.) THE present respondent-original plaintiff had filed the suit against the appellant-defendant seeking recovery of Rs.2.27,853/- before the trial court which suit came to be decreed ex-parte vide the judgment and order dated 25.3.2006. THE appellant having come to know about the said ex-parte decree submitted an application under Order IX Rule 13 of CPC for setting aside the said decree on the ground that he was not served with the summons. THE said application came to be rejected by the trial court vide the impugned order, against which, the present appeal has been filed. It has been sought to be submitted by learned counsel Ms Ashish Joshi for the appellant that the summons were not duly served on the appellant in the suit inasmuch as the appellant was not staying at the given address and the summons were allegedly affixed at the address where his father was staying. According to her, the decree having been passed ex-parte without due service of summons, the said decree was liable to be set aside., however, the trial court has erred in rejecting the application of the appellant under Order IX Rule 13 of CPC. However, learned counsel Mr. Ajay Goyal for the respondent has submitted that the appellant deliberately did not attend the suit proceedings though duly served and therefore the court had rightly passed the ex-parte decree. Having regard to the submissions made by learned counsel for the parties and to the impugned order, it appears that in the suit filed by the respondent-plaintiff, the summons were sought to be served to the appellant-defendant at the address known to the respondent-plaintiff. As per the report of process server, the father of the appellant was present at the given address, however, he refused to accept the summons and therefore the said summon was affixed on the said premises. The trial court therefore considering the said service as sufficient service proceeded ex-parte and passed the decree against the appellant. On the application having been filed under Order IX Rule 13 of CPC by the appellant, the trial court has held that the appellant had not examined his father to prove that he was not present or he had not refused to accept the said summons. As per the Order V Rule 15 of CPC, if the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at the residence, the summons could be served on any adult member of the family. In the instant case, the summons were sought to be served on the father of the appellant as appellant was not present, and since his father refused to accept the summons, the same was affixed on the premises. Such service would be due service and hence the trial court has rightly dismissed the application of the appellant filed under Order IX Rule 13 of CPC. There being no infirmity in the impugned order passed by the trial court, the appeal deserves to be dismissed and is dismissed accordingly.;