- (1.)This is an appeal by the defendants under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908 (henceforth 'the CPC') challenging the order dated 6-2-2013 passed by 1st Additional District Judge, Raipur in M.J.C. No. 1/2006, by which the application filed by the appellants/defendants under Order IX, Rule 13 of the CPC for setting aside the ex parte decree dated 30-4-2005 passed in Civil Suit No. 11-A/2002 and their application for condonation of delay in filing the application for setting aside the ex parte decree have been rejected by the trial Court. The facts in brief, necessary for adjudication of this appeal, are as under:
"(1.1) The plaintiff/respondent herein filed a suit, being Civil Suit No. 11-A/2002 for specific performance of contract and permanent injunction stating inter alia that the defendants/appellants herein have entered into an agreement with him for a consideration of Rs. 5 Lakhs and in part performance of the contract, a sum of Rs. 1,07,000/- has been paid by the plaintiff/respondent to the defendants/appellants, but in spite of repeated requests, sale-deed is not being executed by the defendants/appellants leading to filing of the suit.

(1.2) In the suit, on 15-10-2001, the trial Court directed that the civil suit be registered and further directed that summons be issued to the appellants defendants and since the application for temporary injunction was filed, noticing the urgency, the service of summons and notice were also permitted to be served by special serving officer/process server and the matter was fixed for reply and arguments on the application for temporary injunction on 22-10-2001.

(1.3) It appears that the serving officer/process server submitted on a report on 22-10-2001 to the trial Court that the appellant/defendant No. 1 Smt. Rajkunwar refused to accept notice, whereas other defendants No. 2 to 5 not available on 20-10-2001 and, therefore, notice was sought to be served to defendant No. 1 residing jointly with other defendants but she refused to accept the notice on their behalf also and, therefore, it is being returned. It is pertinent to mention that there is no affidavit of the serving officer/process server in the prescribed form was filed along with the service report.

(1.4) The trial Court on 20-10-2001 recorded since defendant No. 1 has refused to accept the notice for herself as well as for defendants No. 2 to 5 and, therefore, all the defendants were proceeded ex parte and, thereafter, granted temporary injunction in favour of the plaintiff/respondent and the matter was thereafter adjourned from time to time for arguments on grant of application for temporary injunction. But, ultimately, the application for temporary injunction could not be decided and the ex parte evidence of respondent/plaintiff on 28-4-2005 and his two witnesses were recorded by the trial Court and the plaintiff declared his evidence to be closed on the said date and the argument was also heard on the said date and judgment was delivered on 30-10-2004 decreeing the suit for specific performance and permanent injunction.

(1.5) The respondent/plaintiff instituted Execution Case No. 11-A/2002 in which notice was served to the appellants/defendants and they entered into appearance in execution proceeding on 6-11-2005 and thereafter obtained the certified copy of the judgment and decree on 7-12-2005 and ultimately an application under Order IX, Rule 13 of the CPC along with an application for condonation of delay under Section 5 of the Limitation Act were filed on 29-12-2005 stating inter alia that the summons were not duly served to them as the defendants No. 2 to 5 were not residing with defendant No. 1 and the defendant No. 1 has never refused to accept the notice issued by the Court and, therefore, upon being noticed in the execution case, they immediately applied for the certified copy and filed said application for setting aside ex parte decree. In support of application under Section 5 of the Limitation Act it was stated that since they were not duly served and noticed, therefore, they were not having knowledge of the decree, therefore, from the knowledge of the decree and after getting certified copy of the order, the application has been filed on 29-12-2005. The appellants/defendants filed reply before the trial Court opposing the said application holding inter alia that the defendants were duly served in the civil suit and they have deliberately and consciously avoided appearance before the Court and, therefore, decree has rightly been passed and no sufficient cause has been shown for non-appearance when the case was called for hearing.

(1.6) The trial Court by its order dated 6-2-2013 rejected both the applications under Order IX, Rule 13 of the CPC and under Section 5 of the Limitation Act finding that no sufficient cause has been shown for setting aside the ex parte judgment and decree dated 30-4-2005 and no sufficient cause has been shown for condoning the delay in filing the application under Order IX, Rule 13 of the CPC."

(2.)Shri Manoj Paranjpe, learned counsel appearing for the appellants/defendants would submit that the trial Court has committed legal error in rejecting both the applications filed under Order IX, Rule 13 of the CPC and under Section 5 of the Limitation Act stating inter alia:
"1. That the defendants No. 4 and 5 Gangabai and Jamunabai were already married and since then they are residing separately.

2. That the serving officer/process server has not recorded any finding as required by Order V, Rule 15 of the CPC.

3. That the procedure prescribed in Order V, Rule 17 of the CPC where the defendant refuses to accept service and neither the process server has not submitted any affidavit as required under Order V, Rule 19 of the CPC in prescribed proforma nor he was examined on oath by the trial Court and no judicial order declaring summons to be duly served has been recorded by the trial Court by order dated 20-10-2001 while declaring that the defendants are duly served.

4. Order V, Rule 18 of the CPC has also not been followed as the address of the witness identifying the defendant No. 1 has not been stated in the service report of the process server."

(3.)Per contra, Shri Sunil Otwani and Shri Adhiraj Surana, learned counsel appearing for the respondent/plaintiff would submit that the trial Court is absolutely justified in declaring the summons duly served as the defendant No. 1 in his personal capacity as well as on behalf of other defendants who are residing jointly with her, competently refused to accept summons sought to be served by the process server. They would further submit that need of affixing the copy of the summons has been dispensed with by the M.P. Amendment incorporated in Order VI, Rule 17 of the CPC. They would further submit that the appellants/defendants have failed to demonstrate sufficient cause for setting aside the ex parte decree as well as for condonation of delay of 54 days in filing the appeal. They would lastly submit that there is a material contradiction/omission in the applications under Order IX, Rule 13 of the CPC and under Section 5 of the Limitation Act.