1 S.B.Civil Misc. Appeal No.637/2004 Nirmal Jain vs. Bhilwara Processor Ltd. Date : 1.5.2006 HON'BLE MR. PRAKASH TATIA, J. Mr. S Saruparia, for the appellant. Mr. Vinay Jain, for the respondent. - - - - - At the request of learned counsel for the parties, the appeal is heard finally. The appellant is aggrieved from the order dated 22.4.2004 passed by the Learned Additional District Judge No.1, Bhilwara in Civil Misc. Case No.15/2003. Brief facts of the case are that the plaintiff/ respondent filed the suit for recovery of Rs.1,24,813.87p. against the defendants no.1 and 2 firms K.K Agencies and Himani Fabrics through its proprietor Nirmal Jain. The plaintiff also impleaded Nirmal Jain as defendant no.3. The address of the defendants no.1 and 2 is given as Om Textile Tower, Pur Road, Bhilwara whereas the address of the defendant no.3 is A-48, Shastri Nagar, Bhilwara. Notices were sent to the defendants by the trial court which are received unserved upon which the trial court directed to serve the notices on new addresses of the defendants. The notices were sent by registered post as well as ordinary post. The report on the summons sent by the ordinary post 2 reveals that the process server reported that the said firms are not at the address given in the summons and for defendant no.3, it was reported that he is not residing at the place given in the summon. The summon sent by registered post on a different addresses were served as acknowledgement receipt received with signature of one Kamal whereas the process server reported that neither the firms are there on the addresses given in the summons or the defendant no.3 is residing at the address given. The defendant no.3/present appellant submitted an application for setting aside the ex-parte decree dated 13.8.2001. The trial court observed that the address given in the plaint are the same address as given by appellant Nirmal Jain, therefore, the notices were properly served. Learned counsel for the appellant submits that the finding of the trial court is self contradictory if the address given by the plaintiff in the plaint are correct, then the notices were not given on same address by even registered post. If the addresses given on the summons are taken to be correct, then the finding of the trial court that simply because the appellant has given address, as given in the plaint, therefore, service is complete is self contradictory. Learned counsel for the respondent vehemently submitted that the summons were sent on old address and upon finding that the appellant and other defendants are not found there, therefore, the notices were issued on fresh address. However, from address given by the appellant, it is clear 3 that the firms are working at the address given by the plaintiff in the plaint. According to the respondent, the appellant avoided the service deliberately. I have considered the submissions of learned counsel for the parties and perused the record. It is clear from the facts mentioned above itself as well as from the record that the notices were sent to the defendants on different address. If those are correct, then the order of the trial court dated 27.11.2004 is on the face of it factually wrong because the trial court proceeded on assumption that since the address given by the appellant is, the same as has been given in the plaint, therefore, the notices were served on correct address. The trial court also ignored the fact that the notices were not served on the address given in the plaint nor has been disclosed by the appellant in the application. Apart from this, the trial court failed to appreciate the fact that registered A/D have the signatures of Kamal whereas the defendant/appellant is proprietor of the firms and he is not Kamal. In totality of the facts and circumstances of the case, the summons were not served upon the defendants, therefore, the judgment of the trial court deserves to be set aside. In view of the above discussion, the appeal of the appellant deserves to be allowed, hence, allowed and the order of the trial court dated 22.2.2004 is set aside and 4 the application under Order 9 Rule 13 CPC is allowed. Judgment and decree dated 13.8.2001 are set aside, ex-parte order against the defendant is also set aside and the trial court shall decide the suit afresh after giving opportunity to the appellant to contest the suit. The record be sent forthwith to the trial court. Both the parties are directed to remain present before the trial court on 22.5.2006. (PRAKASH TATIA), J. S.Phophaliya