JAIN KARYANA STORE Vs. VEETRAG FINANCE CORPORATION

JUDGEMENT

(1.) THIS appeal is directed against the order of learned District Judge, Jammu dated 15th April, 1995 passed in File No.: 26/Misc.whereby application under Order 9, Rule 13 of the CPC filed by the appellant has been dismissed.

(2.) BRIEF facts of the case giving rise to this appeal are that a suit for recovery of Rs. 53,190.20 with pendentelite interest and costs was filed in the Court of learned District Judge at Jammu. Defendants were ordered to be served with summons alongwith a copy of the plaint. As per record of the trial Court when summon alongwith plaint was offered by the Process Server, Girdhari Lal to appellant no. 2, Bishamber Lal Jain, as per report of the former he refused to accept the summons as also to sign the same. Matter came up before the trial Court on 3rd August. 1993 when it was ordered that the statement of Process Server be recorded. Thereafter record of the trial Court further shows that the appellants were proceeded exparte on 10th August. 1993.

(3.) IN the aforesaid background after recording exparte evidence on behalf of respondent/plaintiff trial Court passed exparte decree. Further case of the appellants was that they were not served with any notice nor the Process Server presented any summons to appellant no. 2, so there was no occasion of his having refused to accept the same. Appellants also allege that they came to know for the first time regarding there having been passed by decree against them when the decree was being executed and court officials accompanied by police came to effect attachment at the shop of appellant no. 2. Thereafter he having approached his counsel and then came to know about the exparte decree having been obtained by the respondent. 14th and 15th August, 1994 were holidays, therefore they applied for the copy of judgment and decree on 16th August, 1994; it was made available to them on 17th August, 1994 and application for setting aside exparte decree was filed on 19th August, 1994. Trial court put the respondent to notice on receipt of this application, thereafter recorded evidence on behalf of parties and has finally rejected the application, hence this appeal under Order 43 of the Code of Civil Procedure. It may be noted in this context that appellant no. 2, Bishamber Lal Jain had appeared on his own witness, whereas respondent examined Girdhari Lal, Process Server as a witness on his behalf, besides appearing himself in the witness box. Anil Kumar was produced as another witness in whose presence appellant no. 2 is stated to have refused to accept the notice. This man had witnessed the report of refusal made by Girdhari Lal, Process Server during the course of trial.