s'!:-,i ;jatPt; COURT OF CHHATTISGARH AT BILASPUR Civil Revision No.207/2003 0 SingSe Bench: Hon'ble Shri DiHp Raosaheb Deshmukh, J. ADpLicant Ashok Kumar Mehta, S/o Popatlal Mehta, Aged about 52 years, ' Wo Darogapara, Raigarh (C.G.) Versus Ram Niwas, S/o Chanduia! Sharma, Aged about 57 years, R/o Dabra Road, Kharsia, District-Raigarh (C.G.) ME^.0 OF REViSION PETITtON UNDER SECT10N 115 OF THE CODE OF CiVIL PROCEDURE '-^'^&'^y "^:^.;^-is-, Present: - Shri H.S.Patei, counsel forthe applicant. Shri S.N.Nande, counsel for the respondent. (Passe^T^'^il 2QQ7) Heard on I.A.No.5863 of 2003 which is an application for urgent (2) Considered and allowed. Matter is taken up on board. (3) Learned counsel for disDosed the parties pray at the stage of admiss is Civil Revision be This Civil Revision was nnaiiy heard foday af the stage of (5) The appiicant/ptaintiff is aggrievsd by an order dated 06-05-2003 passed by the-2 Additionat District Judge, Raigarh in M.J.C.No.04 of 1995 whereby upon an application under Order-9 Rule-13 read with Section-151 of the Code of Clvil Procedure having been filed by the non- applicantfdefendant herein the ex parfe judgment and decree dated 11-08-1994 passed in Civii Suit No.19-A of 1994 was sst aside. z. 8 h:'.el'-4Ssy; (6) Brief facts are that the appel!ant/plaintiff-Landlord filed Civil suit No. 19-A of 1994 for eviction aaainst the resDondenVdefendant-tenant before the 2 Additlonal District Judge, Raigarh. On 07-05-1994, the Court ordered issuance of notice to the respondent/defendant herein. On 11-05-1994, notice was issUed to the respondent/defendant. On 17-05-1994, the Process Server-Udhav Ram went to Kharsia for service of notice. Ram Niwas, the respondent-defendant herein was not at home. Process Server-Udhav Ram asked Bhagwani, wife of Ram Niwas, the respondenVdefendant herein to take notice who refused. The notice was served by affixtureand returned on 23-05-1994 with an endorsement of refusal by the wife of the respondent/defendant. The Court proceeded ex parte against the respondent/defendant and passed an ex parfe decree on »,.!!:;;,i-^i^litf The respondent/defendant moved an applieation on 13-02-1995 Order-9 Rule-13 read with Section-151 of the Code of CMI before the 2 Additional District Judge, Raigarh for setting aside the ex parte decree on the ground that he had gone to Ambikapur to attend a reiative's marriage from 15-05-1984 to 18-05-1994 which was allowed by the impugned order. Hence, fhis Revision. (8) it is not disputed went to Kharsia on 17-CS-1994 when Process Server-Udhav for effecting the service of notice, the not available at his residence. Report of the process server was reproduced in para 8 of the impugned order which is "WFf Wte ^f^IT ^ tcf? ^ ^TR '<il*lRc|!'M wf SffO 'ER cTIcf Wt 3?T TRiT WW. ^l ^^ T^ft ^ TOT ^cii ft ^?? ^ ?!TO^ ?is? 'ror t i q^ TR wter Sjte ^TcS[ ^ ^ q?^ 45 ^ c^t gl^T? sft, ^ ^TO^^f^^T^^^^WWRT^^r W1>-^TC ^cRR q5t $tiRiy ^ft nrte eidtcb'* ^ fff^ ^ 2 Siuft ^RT ^ WT •'{^ROt-l Wrf ^ ^ ^IWT ^ 3ffT a.w^ v. wff tor i wrr cnftci qwrai, ^ITO airw l" !•••';-"-*ia"Stia (9) The above used due and summons. lt atso locatity was present process server that and therefore she ssrver did not use due does not show that the process server had ditigence in enquiring about tfte house of the ring the identity of the lady who refused to take the not show that any independent witness of the the time when service by affixture was made upon idant's wife. It aiso emerged in the testimony of the the lady had said that Ram Niwas was not at home Id take the summons after Ram Niwas returned not amount to refusaS and shows that the process and reasonable diligence to serve the summons on !y as required by Order-5 Rule-15 C.P.C. (10) !n para-23 of the impugned order, it was cteariy mentioned by the Court that Process Server-Udhav Ram had admitted that he did not make any enquiry from the lady who emerged from the house on his call. He a!so admitted that he did not ask any neighbourer or viilager about Ram Niwas, the respondent/defendant herein and returned the summons with an endorsement of refusal by the wife of respondenUdefendant. Under Order V Rule 17 of the C.P.C., the Process Sen/er ought to have used aii due and reasonabie diiigence in enquiring about the defendant and also about the identity of the iady on whom he intended to sen/e the notic®.In the absence of exereise of such due and reasonable diligence, which was expected from the Process Server, there is a clear viotation of Order-5 Ruia-18 of the Code of Civil Procedure which provides that the serv'sng officer shali, in ait cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the originai summons, a return stating the time when and the manner in which the summons was sen/ed, and the name and address of the person (if any) identitying the person served and witnessing the delivery or tender of the summons. !n this view of the matter, relying upon a dedston r- ^ 'a^ in a similar situation in 200S(2)C.G.L.J. reported in 2007(1} that the iearned 2"d was justified in ailowing the application under Section-151 ofthe Code of Civil.Procedure decree passed in Civil Suit No.19-A of 1994. Kunjlal Vs. Khorbehreen and Ashok Kumar Sahu G.L.J. 314, I am of the District Judge, Raigarh Order-9 Rule-13 read with setting aside the ex parte In the result, stage of Civil Revision has thus no merit and is dismissed i. There shall be no order as to costs. _____--—— s&'- Dilip ^ Judge ^•Vi-S^y