^e COURT OF CHHATTISGARH AT BSLASPUR Sinaie Bench : Hon'ble Shri Dsiio Raosaheb Deshmukh, J. M|s_cellaneous Appeal No.40 of_2.007 Appeilant Defendant Shobha Ram, S/o Mayararn Satnami, aged about 45 years, R/o Viitage Khond, Tah. & District Janjgir-Champa (Chhattisgarh) versus Respondent PlaiQliff Abhishek Singh, S/o Pursouttam Singh, aged about 30 years, R/o Akaltara (Purani .Basti), Tah. & DIstrict Janjglr-Champa (C.G.) Nliscellaneous Apjseai under Grder 43 Ruie 1 (di of the Co.de of Civji Procedure Present: Shri Rajeev Shrivastava, counsel for the appeilant. (Passed on this 23rd day ofJuiy, 2008) H.eard cn I.A.No.3, an applicatlon for taking document on record. IA.No.3 is aiiowed. Document.is taken on record. (2) Heard cn admission. (3) This misceiianeous appeal is directed against an order 27- 06-2007 passed by the-Addltiona! District Judge, Janjgir, District Janjgir-Champa in JViiscellaneous Civil Case No.13/2005, whereby the applicatjon under Order 9 Rule 13 of the Code of Civil Procedure filed by the appel!anfc/defendant for setting aside. the ex decree 24-02-2004 passed In Civi! Sult No.9-8/2003 v/as dismissed. (4). in. Clvil Suit No.9-B/2003, summons was Issued to. the defendant at the foilowing address: "W^TTPT tTa'^TFti' ^Q ^raRFT ^TrFTPft. . ^ ue Aq pe^se^e Ajnp se^ qosqA\ (jeAJ99 sseoojd 94} p ^Aepjye pue yodej eq^ ^41 p|eq jsqpnj seM ti -jBiun^ luiMqsv uos jofety 8 eAeq pu plp 9l| ^ljl CAOjd pU©JOA^ pu pip lueoijdde eq^ ^4} punojB eq^ uo ^QOZ -90-ZS P9i®P•!9Pio Aq ©inpeoojciJIAIO p epoo eq^ p £|.©sny5 jepJQ jepun uo^eoijdd^ eq^ pe99suu9jp eBpnp PUISJQ E^uosjppv OMI (9) 'seiyed eqi Aq p9| S^A eou©piA9ON 'oio^ ui siueaueAe CAoq^ ei|^ paiuep ^u|eid/|u©puodsey -suoLuiuns ©q^ uo podej esje^ e U©A|S jepjoq -eejoep^ueoiidd^-uou eq^ q^A\ uojsn||oo ui peq jeAjes sseoojd eqi pue puoq>| e6e|||A. ui. epjsej pu pip pue jnd98[ig ^ uoi^onpe siq Buinsjnd 9r€M luepuepp^ueiEedde eq^ j.o uos jouiiu eug ^q^ punojB eq^ uo eejoep e^ad xe aq^ epise SuiBes jo^ ejnpeoojd IIAIQ jo epoo eq^ p £i. e|ny 6 ^^P^O -lapun uoi^oifdde u©pejy ^u^puej.ep/iu^isedde eqi (5) T^QQ^ZQ"^Z uo P^ssed S€Meejoep pue ^ueujBpnf pu^ e^Bd xe pepeeoojd S€Miuepuej.ep^uBjEedde eqi RsseuyM ^uepuedepui ue Aq pei.sene A|np se^ pue ^je^ejsj ("01"0 04} ejopq jeAjes sseoojd eij^ Aq qieo uo ^ueiue^s e q^A peiuediyoooe S€M podej pies eqi „! .Lb^J J^p i-slj^ ^ M^t& .kb. ^k^ J^Ji ^ ^ U4§ .l<te P- 9S 1^^ &^ Mit»^r4p ^3^- <£)-^ ^jJ^ Mi 2A LAL^ ^^J±mh.^l<fe^J[£^JMtJ^Ppqbte^ j^. U&i ^lh M& ^l&lt U^ IMId^ IPA I^ 4^Lj3 i^fi. JaiMa ^M^ Ml ^h,, :yodej 6ui/Ao||Oj. eq^ q^iM jeAjes sseoojd 94^ Aq peujni.ej seM ^OOZ'I.O-SS Joi ^uepueppflueijedde ey^ 0} suoujuins eqi ,,'lhl^ N[j>^l^ - iP^j g^- i±^jli^tlb gfr fi.^ -z— -3- n^ Independent witness proved that valid service was effected on the appiicant/defendant. !t was further observed that in the application under Order 9 Ru!e 13 of the Code of Clvii Procedure the applicant did not even mention In paragraph 7 the date cn which he first learnt about the exparte decree. (7) Shri Rajeev Shrivastava, learned counsei for the appeilanVdefendant argued that under Order 9 Ruie 13 of the Code of Civi! Procedure the appellant/defendant was oniy required to prove that the sumrnons v^as not duiy served on him. It was urged that under Order 5 Ruie 15 of the Code of Civll Procedure sen/ice on an aduit rnernber of the defendant"'s famiiy could be made oniy vi/hen the Court ordered substituted service after being satisfled that the defendant coujd not be personaliy served. (8) Having considered the submissions o? iearned counsel for the appelianVdefendant and after perusai of the record, ! am of the considered opinion that this appeal has no merit. in order to succeed in an appllcation under Order 9 Ruie 13 ofthe Cod©of Civil Procedure in a of the present nature the appeilant/defendant was required to satlsfy the Court that the surnmons was not duly served on him as required by law. Order 5 Ru!e 15 of the Code of Civi! Procedure reads as under: U0.5 R.15: . Where service inay be on an .adySt member of defendant's family. - Where in any suit the defendant Is absent from his resldence at the tlme when the semce of summons is sought to be effected on hirn at his residence and there is no iikeiihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service ofthe summons on his -^, behaif sen/ice rnay be rnade on any adult member of the farniiy, vvhether male or femaie, vvho is residing with him. Explanatjon. - A servant is not a member of the family v/ithin the meaning ofthis ruie." (9) Learned counsei for the appeISanVdefendant submitted that by an arnendment incorporated in the State of Madhya Pradesh the words "when the defendant is absent or cannot be personaiiy served" have been substituted for the words "where in any suit the defendant cannot be found", A perusal ofthe report ofthe process server and his affidavit leaves no room for any doubt that Ashwini Kumar, major son of the appeijanVdefendant was present at the house of the appeilanVdefendant in Viiiage Khond and the process ser^er was inforrned fhat there was no definite informatlon as to when the appellant/defendant shail return from Akaltara. Under . these circumstances, the process server was justified in effecting service on Ashwini Kumar, the adult male member of the farniiy of the appeiiant/defendant, The appeIlanVdefendant did not aver in the application under Order 9 Ruie 13 of the Code of Civi! Procedure that he did not have a major son named Ashwini Kumar. !t is pertlnent to note that in the cause-titie of the appiication under Order 9 Ruie 13 of the Code of Civi! Procedure the appellanVdefendant had mentloned his address at Viliage Khond, Tahsii and District Janjgir-Champa. Name of the appeilant's son pursuing his education at Biiaspur was also not divuiged in the appjicatlon, !t Is aiso pertinent to note that before the lower Court, the appeilant/defendant did not even pray for an opportunity to adduce any evidence in support of the appiication and only prayed for times for arguments upon which the iearned Additionai -^- District Judge after hearing the arguments passed the impugned order. I am ofthe considered opinion that the rejection ofthe appiication under Order 9 Rule 13 of the Code of Civii Procedure by the iearned Additiona! District Judge is we!! merited and according to law. (10) There is no merit in this appeai, which is accordingly dismissed atthestage ofadmission. i.A.No.1, an appiication for stay and I.As.No.2 and 4, appiications for urgent hearing stand disposed of. Sd/- Dilip Raosaheb Deshmukh Judge Gopai