TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE plaintiff-non-petitioner filed one suit for possession against six defendants on 18. 05. 1996. All the six defendants are admittedly real brothers of the plaintiff. THE Trial Court after passing the order to proceed ex-parte against the defendant No. 1 on 19. 07. 1997 decreed the suit of the plaintiff on 13. 1. 1998 as the counsel appearing for the rest of the defendants also pleaded no instruction. All the defendants submitted an application under Order 9 Rule 13 CPC stating therein that the appellant No. 6 Manmal was residing at Delhi since last 10 years and he is deaf and dumb. He is not residing jointly with his brothers. The report also received on the summon of the said Manmal that he is residing at Delhi. The Trial Court ordered that new address of defendant No. 1 be filed and summon may be issued to defendant by the registered post. According to appellants, no summon was served upon the defendant Manmal at his Delhi address. The Trial Court proceeded on a report, which was received on the summon sent by ordinary course evidencing that summon of the suit was offered to Manmal's brother Onkarmal at Old address. On summon it was mentioned that Onkarmal is residing with the defendant Manmal and he accepted the summon. Since despite service, nobody appeared on behalf of Manmal nor he appeared before the Trial Court, the Trial Court passed the order to proceed ex-parte against the defendant No. 1 on 19. 04. 1997. On 22. 9. 97, learned counsel for the defendants No. 2 to 6 appeared and pleaded no instruction and court passed the order to proceed ex-parte against these defendants also. All the defendants in their application under Order 9 Rule 13 CPC dated 28. 4. 1998 submitted that before pleading no instruction counsel for the defendants No. 2 to 6 did not give any notice or information of the date fixed by the court. According to applicants-appellants, despite knowledge and courts order to serve the summons upon the defendant No. 1 at his Delhi address, the plaintiff did not serve the summon upon the defendant No. 1 at his Delhi address. The defendant No. 1 is residing at Delhi since last more than 10 years from the time of alleged service of summons upon his brother, therefore, service upon his brother is not a sufficient service, rather report is false one. Therefore, the ex-parte decree passed by the Trial Court on 13. 1. 98 deserves to be set aside. The said application is supported by the affidavit of the defendant-applicant Manmal. The plaintiff submitted reply to the application and gave the complete facts how the proceedings were taken by the court below. The plaintiff in reply submitted that as per order of the Trial Court, the plaintiff submitted envelop for registry so that his summon may be sent to the defendant No. 1 at defendant No. 1's Delhi address. The summon was sent to the defendant No. 1 at his Delhi address. Acknowledgment receipt received back containing the signature of the recipient of that envelop. The plaintiff also rebutted that defendant Manmal is residing separate from the rest of the defendants and also denied that he was residing at Delhi since last 10 years. The detail reply of the plaintiff is supported by the affidavit. In the Trial Court, the time was granted to all the defendants to produce evidence. The defendants-appellants took time for producing evidence on 18. 1. 99, but did not appear to give their own statement on oath nor produced any witness by specifically saying that the defendants appellants did not want to produce evidence, which is clear from the order dated 8. 2. 1999. The Trial Court after hearing the parties, by detail order dated 12. 04. 1999, rejected the application of the defendants-appellants for setting aside ex-parte decree.
(3.) BEING aggrieved against the said order of the Trial Court, the appellants preferred appeal before the first appellate court and that too, was also dismissed on 25. 08. 2001. Being aggrieved against the two orders, the appellants have preferred this revision petition. Learned counsel for the appellant vehemently submitted that the Trial Court should have decided the application filed by the defendants under Order 9 Rule 13 CPC as a Suit in view of the provisions of Section 141 of the CPC and should have afforded opportunity to produce evidence to the defendants-appellants. It is also submitted that there is affidavit of Manmal himself that he is residing separately from his brothers and he was residing at Delhi since last 10 years. It is also submitted that the court below has not drawn inference of service of the defendant No. 1 on the basis of the summon sent by registered post as alleged by the plaintiff-respondent. ;