R.S.CHAUHAN, J. - (1.) THE defendant-appellant has challenged the order dated 18.11.2000 passed by the District Judge, Ajmer, whereby an application under, Order 9 Rule 13 of the Code of Civil Procedure (henceforth to be referred to as 'the Code', for short) read with Section 151 of the Code has been dismissed.
(2.) THE brief facts of the case are that the defendant-appellant allegedly entered into an agreement to sell his residential house to the plaintiff- respondent for a sum of Rs. 30,000/- on 19.10.1984. An agreement to such effect was executed. Allegedly, since the appellant was not willing to get the sale-deed registered, on 21.05.1987 the respondent-plaintiff filed a suit for specific performance against the appellant. The summons were issued by the Court, which were allegedly served upon the defendant-appellant on 28.07.1987. According to the summons the date fixed for his appearance before the Court was 27.08.1987. This was the first date for appearance of the defendant. On the very first date, since the defendant did not appear, the trial Court proceeded ex parte against him. The case was fixed for recording the plaintiff's evidence on 11.02.1988. On 11.02.1988, after recording the plaintiff's evidence an ex parte judgment was passed by the Court. According to the appellant the summons were never received by him, therefore, he could not appear before the court on 27.08.1987. In fact he came to know about the ex parte judgment only on 09.11.1990 when the summons under Order 21 Rule 22 of the Code were issued by the executing court. On 04.12.1990 he filed the application under Order 9 Rule 13 of the Code. The respondent-plaintiff filed reply on 27.04.1991. The appellant examined himself as a witness and the respondent-plaintiff examined himself and his father as witness. Vide order dated 18.11.2000 the trial Court dismissed the application under Order 9 Rule 13 of the Code as stated above. Hence this appeal before this Court. Mr. S.C. Gupta, the learned counsel for the appellant, has vehemently argued that the trial Court seems to be in crashing hurry to decide the case. Just because the appellant did not appear on the first date of the case, the trial Court was not justified in proceeding ex parte. In fact the entire case was decided on the second day fixed for the trial. According to the learned counsel, the summons were never received by the appellant. In his testimony the appellant had clearly stated that the signatures on the summons are not his. But no effort was made by the trial Court to seek the opinion of Forensic Scientific Laboratory about the genuineness of the said signature. Moreover, the right to defend his interest cannot be closed without giving ample opportunities to the defendant.
(3.) ON the other hand, Mr. Rajat Ranjan, the learned counsel for the respondent has argued that the court is not supposed to wait indefinitely for the defendant to appear. Under Order 9 Rule 6 of the Code, court can proceed ex parte against the defendant in case he does not appear on the date assigned for his appearance. Hence, he has supported the impugned order.;