- (1.) SIBLINGS are the rival parties pitted against each other in this fierce legal battle of supremacy.
(2.) BONE of contention in this appeal is the impugned order dated 10th of April 2013, rendered by the learned Addl. District Judge No.1, Bhilwara (for short, 'learned trial Court'), whereby the application of the appellant under Order 9 Rule 13 CPC for setting aside ex parte decree is rejected. Stated in succinct, the factual matrix giving rise to this appeal is that the respondent plaintiff launched a civil suit against the appellant for recovery of a sum of Rs.25,65,000/ . In the plaint, the respondent inter alia averred that he is presently serving at Dubai (UAE) and his brother appellant is doing his business at Thane (Maharashtra). During visit of the respondent to his native place Bhilwara, appellant prompted him that he may deposit his savings as a security deposit with him so that the same shall remain safe and he would return back to the respondent as and when demanded. Acceding to the request of his brother, the respondent deposited a sum of Rs.26,50,000/ as security deposit with the appellant. When the respondent demanded his money back, the appellant handed over him two cheques of Vasai Janta Sahakari Bank of different denominations i.e. Rs.6,65,000/ and Rs.19,00,000/ bearing cheque Nos. 257098 and 162737 respectively. As per the version of the respondent when those cheques were presented for encashment, both were dishonored by the Bank of Baroda, where the respondent was having his account, citing the reason of insufficient fund in bank account No.33881 of the appellant. The suit was instituted in the year 2009 and summons were issued to the appellant on various occasions but were not served for one reason or the other. The respondent made endeavor to send the summons by registered post but the registered envelope received back as unclaimed. Feeling disdained from the procedural wrangle in serving the summons, the respondent made endeavor for the substituted service on the appellant and that being so a request was made at his behest to serve the summons by way of substituted service under Order 5 Rule 20 CPC. The learned trial Court allowed the prayer of the respondent and permitted him to affect service of summons by way of substituted service and directed the summons be published in local newspaper where the appellant is residing. Pursuant to the order of the learned trial Court, requisite summons were published in the daily newspaper "Vaibhav" which is having circulation in District Thane. When the respondent furnished the newspaper before the learned trial Court, the same was not treated as sufficient compliance of Order 5 Rule 20 CPC on the anvil that summons were published in daily newspaper of Marathi language. Therefore, the learned Court below permitted the respondent to publish summons in a daily Hindi newspaper having wide circulation in District Thane and the said order of the Court was complied with by the respondent. Despite publication, nobody appeared on behalf of the appellant before the learned trial Court and therefore on 18th of January 2011, the learned trial Court proceeded ex parte against the appellant. For proving his case, the respondent himself appeared in the witness box and testified on oath and also produced documentary evidence. The learned trial Court, after considering ex parte evidence, decreed the suit ex parte for a sum of Rs.25,65,000/ on 18th of April 2011.
(3.) THE appellant made endeavor to set aside the ex parte decree by submitting application under Order 9 Rule 13 read with Section 151 CPC on 31st of May 2012 before the learned trial Court. In the application aforesaid, the appellant has specifically pleaded that the summons issued by the Court were never served on him and the address on which the summons were sent was not the place where the appellant was ordinarily residing at the relevant point of time. The appellant has also averred in the application that there was a report of the process server that the premises in question is closed yet on the same address summons were sent by registered post, which was nothing but an empty formality. While taking a dig at the substituted service by way of publication in the newspaper dated 22nd of April 2010, the appellant has mentioned in the application that for resorting to substituted mode of service, the provisions of Order 5 Rule 20 CPC are not adhered to by the respondent plaintiff in letter and spirit. The appellant categorically alleged in the application that the suit itself is based on false and concocted facts. The appellant has also made a positive assertion that he came to know about the ex parte decree for the first time on 15th of May 2012 and thereafter he applied for certified copy on 22nd of May 2012 28th which was received by him on of May 2012, immediately after receipt of the certified copy, the requisite application was made by him.;