Ev. a WI @ HIGH COURT OF CHHAT’I‘ISGARH: BILASPUR SB: HON’BLE SHRI JUSTICE VIJAY KUMAR SHRIVASTAVA MISCELANEOUS APPEAL NO. 5L§IZOO4 I ‘i Banarsi, S/ o. Chandra Sao, aged about 42 years r/ o. Salka, Tehsil Surajpur, Dist.Surguja, (CG). Appellant : (DCfendant No. 1) Vs. Regpondents: 1) Shilocham' d/ o. Shivmangal Koir, age 4O years, r/o. village, Salka, P.S. Smajpur, Dist. Surguja (CG). (Plaintim State of Chhattisgarh through Collector, . Surguja, (CG). (Proforma defendant No.2) PRESENT: Shri A.K. Prasad, Counsel for appellant. Shli J.K. Shastri, Counsel for respondent No. 1. Shn' J.D. Bajpai, Govt. Advocate for respondent No.2] State. ORDER 8 ( Passed on 25th April,2005) Being aggrieved ’by the order passed in M.J.C.No.29/99 by Ist Additional Dist. Judge, Surajpur on 17/04/2004 rejecting the application under Orde?41, Rule 21 of the C.P.C. (henceforth, “the Code”), this appeal has been prefenediunder OrderiisLgule 1 (t) of the Code. 2) A Civil Suit No. 137—A/ 89 for possession and permanent injunciion was $ed by plaintiE/raspondent No.1 Shilochani against ithe appellant in the Court of Civil Judge, Class II, Suarajpur. Vide ‘ judgment and decree dated 29/ 10/ 1991 the suit was dismissed. ‘Being aggrieved by the judgment and decree passed by the trial ' Court, Civil Appeal No. lO-A/ 1992 has been hled and the said appeal ‘was decided ex pane on 29/08] 1996 in favour of the plaintiif/respondent No.1. Appellant stating that he got the kn‘owledge of ex parte decree on 29/ 10/ 1999, nled an application for setting aside the ex parts decree and re-hearing of the appeal under Order 41 Rme 21 of the Code on the gound that the notice of the appeal has not been served on him PlamnE/ respondent No 1 denied the fact of service of notice and raised the question of limitation. 3) Learned Court below considering the evidence and material on record. held that the Court properly proceeded ex parte, therefore, application tiled by defendant No. 1 (appellant) was rejected vide impugned order dated 17/ 04/ 2004, .\\ 4) On 23/03] 1994 the Court ordered‘issuance of notice to . respondent No.1 and fixed the case for 28/04] 1994. 0n 28/04] 1994 without taking into consideration the fact of service or non—service of notice on respondent No.1, the Court again ordered issuance of notice to respondent No.1 and nxed the appeal for 27/06] 1994. On 27/06] 1994 the Court held that a notice was issued to respondent No. 1 and the same has been returned unserved with an endorsement that the wife of respondent No.1 refused to accept the notice. The said notice was issued for 28/04] 1994 and not for 27/ 06/ 1994. The Court held that the service of said noice is t valid, proceeded ex parts against respondent No.1 and decided the appeal ex parte on 29/08] 1996. 5) Banarsi (respondent No.1) Who is appellant herein to proe that the notice has not been served on him, examined himself v an other Witnesses. Snya (AW/2) is his wife o very speifically stated that she never refused to accept any notice and no c on aame to serve. Name of Mahesh as witness has been escribed e d t in the service report, but ulnnya (AW/ 2) and Chamru Prasad‘ Sna (AW/3) ‘have clearly stated that no one named Mahesh lives in their Village. 6) To contradict the said evidence, espondent No. 1 herein r Shilochani (NAW 1) although appeared as Witness, but did not support the fact that notice was refused by Sulananya, the Wife of Baisi. Neither the ocess server nor the witnesses d in the an pr name service report have been produced or examined. 7) From the evidence of Banarsi (AW/ 1), ‘Sukmanya (AW/ 2 and Chamru Prasad (AW/3), it was established that no notice has been served on Banarsi in person nor any notice issued in the name of Banarsi, has been refused by his wife Sukmanya. Even the witness Mahesh whose name appeared in the service report does not reside in the coucernedm‘llage. So far as knowledge is’concerned, Banarsi on oath specifically stated that for the hrst time on 29/ 10/ 1999 he came to know about the judgment. He instructed his advocate for taln'ng a copy of the judgment on 30/ 10/ 1999 and d? ukma wh @7 received a copy thereof on 03/ 11/ 1999. From the record, it is apparent that the application was flled on 04/11/ 1999. To disbelieve the same nothing has been placed before the Court. ‘ Therefore, the application tiled under Order 41, Rule 21 of the Code, is not time barred. 8) No ‘other contentions have been raised during \xrg arguments. u¢ i 9) The application med by the present appeHant under Onde‘r 41, Rule 21 of the Code is allowed. The impugned order passed by the Court below is set aside. The ex parte judgment and decree passed by the First appellate Court in Civil Appeal No. 10- A/ 1992 on 29/08] 1996 is also set aside with a direction to readmit the said appeal for healing and after ah'ording opportunity of hearing to both the panics the First appellate Court shall decide the same afresh on its own merit. 10) Both the parties are directed to appear before the appellate Comt, i.e., Ist Additional District Judge, Surajpur, Dist. Surguja on 20/ 06/ 2005. Parties to bear their own costs of this appeal. Sd/- V.K. Shrivastava Judge 25/04/2005 l l i raju