NAGARJUNA CONSTRUCTION CO LTD Vs. R K MAHESHWARI

JUDGEMENT

(1.) THIS Misc. Appeal has been filed under Order 43 Rule 1 (d) of the Code of Civil Procedure against the order dated 8-4-2000 passed by First Additional District Judge, Bhopal in Misc. Civil Case No. 18/99. Shortly stated the facts are :-

(2.) THE respondent filed a suit No. 3-B/1998 for recovery of Rs. 3,37,292/- against the appellant company. As per order sheet of the Trial Court dated 10-12-1998, the Trial Court ordered to issue notice of suit to the appellant company at its Head Office, Hyderabad by registered A. D. as well as by ordinary post and fixed the case for filing written statement on 18-1-1999. On 18-1-1999 on the basis of acknowledgment of the postal department about receipt of notice, as none appeared for the appellant, the Trial Court proceeded exparte against the appellant. On 29-1-1999 exparte decree was passed.

(3.) ON 22-4-1999, the appellant filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside exparte decree. It was stated in the application that the appellant never received any notice by registered post nor received any summons as sent by the Trial Court. In addition it was submitted that the appellant was having business relationship with the respondent till 1997. The respondent raised a false claim against the appellant and sent a legal notice dated 8-7-1998. The appellant from the reliable sources and business relations with another party at Bhopal has come to know that pertaining to the notice dated 8-7-1998 the respondent had filed some Civil Suit before the Court of Bhopal. To enquire this the appellant sent his Legal Officer S. K. Gowes to Bhopal on 1st March, 1999. There was holiday for three days due to Holi festival as such he returned to Hyderabad on 3rd March, 1999. On 20-4-1999 Shri S. K. Gowes was again sent to Bhopal by the appellant to enquire about any further action of the respondent pertaining to his notice dated 8-7-1998. On 21-4-1999 on coming to Bhopal he contacted Shri J. P. Jat, Advocate to enquire as to whether any suit has been filed in consequence of the notice sent by the respondent. On enquiry it was found that the respondent had filed a civil suit bearing Suit No. 3-B/98 on 23-11-1998 in the Court of I Additional District Judge, Bhopal against the appellant. On 21-4-1999 itself an application for inspection of case file was submitted and on inspection and perusal of the case file it has been revealed that an ex parte judgment and decree has been passed against the appellant on 29-1-1999. It was further submitted that the acknowledgment card does not bear any seal of postal department either of Madhya Pradesh or Andhra Pradesh region. The said acknowledgment card does not bear any registry number over it. The said acknowledgment receipt bears the seal in the name of appellant's office but the said seal as well as signature are forged one and the same does not belong to appellant company. It was accordingly prayed that on the basis of such acknowledgment the presumption of service of summons on appellant is not correct. It was also stated that there is no receipt of proof of sending of the registered notice in the record of the case file. It was thus stated that the respondent had managed a false acknowledgment card by using his influence in order to get ex parte order against the appellant. The application was supported by affidavit of S. K. Gowes, Officer (Legal) of appellant company.