SBCMA NO.278/1995 – M/S SINGHVI MACHINERY STORES V/S SMT. KANCHAN DEVI :JUDGMENT DTD.13.5.2009 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL MISC. APPEAL NO.278/1995 M/s Singhvi Machinery Stores Versus Smt. Kanchan Devi PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.J.P.Joshi, }for the appellant. Mr.Khet Singh } Mr.Sanjay Mathur, for the respondent. DATE OF JUDGMENT : 13th May, 2009. JUDGMENT 1. This appeal is directed against the order of learned Dist. Judge, Udaipur dtd.29.5.1995 whereby the learned trial Court rejected the application of the defendant – tenant under Order 9 Rule 13 C.P.C. for setting aside exparte decree of eviction dtd.2.8.1990. 2. The plaintiff – respondent Smt.. Kanchan Devi W/O Sh. Basanti Lal Singhvi and aunty of a partner of present appellant firm Sh. Bhopal Singh, filed a suit for eviction in respect of suit shop on the ground of default in payment of rent and personal bonafide need of her son, namely, Suit No.344/1989 – Kanchan Devi V/s M/s Singhvi Machinery Stores which came to be decreed by the learned SBCMA NO.278/1995 – M/S SINGHVI MACHINERY STORES V/S SMT. KANCHAN DEVI :JUDGMENT DTD.13.5.2009 2/6 trial Court on 2.8.1990. The application under Order 9 Rule 13 C.P.C. was filed by the present appellant on 24.1.1991 inter alia on the ground that the summons of the learned trial Court were never served on the defendant and the plaintiff in collusion with the process server Laxmi Lal Kumawat managed the service of summons on the defendants with the endorsement of refusal of service and thus, obtained the exparte decree which deserves to be set aside. 3. The said application came to be rejected by the learned trial Court by a detailed order running into 12 pages on 29.9.1995 and aggrieved with which, the present appeal has been filed by the defendant. 4. Mr. J.P. Joshi and Mr. Khet Singh, learned counsel appearing for the appellant taking this Court through the impugned judgment and order dtd.29.5.1995 and the report of the process server on the summons as well as statements recorded by the trial Court during the course of hearing of application under Order 9 Rule 13 C.P.C. vehemently submitted that even an FIR was lodged against the said process server Mr. Laxmi Lal Kumawat and submitted that he was in the habit of making false reports on the summons and helped the plaintiff to obtain exparte decree and thus, the application under Order 9 Rule 13 C.P.C. deserves to be allowed. They further submitted that according to plaintiff, the suit shop itself was lying closed for many days, therefore, the report of the process server that SBCMA NO.278/1995 – M/S SINGHVI MACHINERY STORES V/S SMT. KANCHAN DEVI :JUDGMENT DTD.13.5.2009 3/6 the summons were offered to the appellant Bhopal Singh at the suit shop at 8 a.m. could not be believed and also that the said notices were not served by affixture as required by Order 5 Rule 2 C.P.C. and the two witnesses required to attest the said refusal or affixture were also the same persons, namely, Subhash Singhvi who was son of the plaintiff and another Mr. Katimuddin and therefore, the learned trial Court has wrongly drawn conclusion that the notices were served on the defendant and proceeded to pass exparte decree. 5. On the other hand, Mr. Sanjay Mathur, learned counsel appearing for the respondent vehemently submitted that the present appellant – defendant one of the partners Mr. Bhopal Singh was deliberately avoiding service of summons and he is not only close relative of plaintiff Smt. Kanchan Devi being nephew of her husband, but he refused to accept the summons of the Court on more than one occasion and the report of the process server was absolutely correct and justified and in accordance with the Rules. He further submitted that said Bhopal Singh was regularly appearing in the Courts in regard to his other matters and was very well aware of the present eviction suit filed by the plaintiff and one of the partners of the firm Mr. Gyan Singh Modi was served with the summons of the Court and therefore, the service on the defendant – tenant, a partnership firm should be deemed to be complete and the said partner never raised any objection in the trial Court for non-service of summons upon him. The learned counsel, therefore, submitted that SBCMA NO.278/1995 – M/S SINGHVI MACHINERY STORES V/S SMT. KANCHAN DEVI :JUDGMENT DTD.13.5.2009 4/6 the exparte decree dtd.2.8.1990 was perfectly justified and the learned trial Court was right in rejecting the application under Order 9 Rule 13 C.P.C. of the defendant and the present appeal being devoid of merit deserves to be dismissed and on account of execution of the decree having been stayed by this Court, the said execution has been delayed for all these 15 years and therefore, the appeal may be dismissed with costs. 4. Having heard the learned counsel and upon perusal of the impugned order and the record of the case, this Court is of the opinion that there is no force in the present appeal of the defendant and the impugned order dtd.29.5.1995 passed by the learned Dist. Judge deserves to be maintained. 5. There is no reason to disbelieve ex-facie the report of the process server made on the summons which clearly stipulates that the defendant partner of the tenant firm Mr. Bhopal Singh refused service of summons, whereas the other partner Gyan Singh Modi who was also similarly served by affixture of notice upon refusal to accept the same, did not raise any objection before the learned trial Court. It is well settled that the service on one of the partners of the firm tenant is sufficient. Merely levelling allegation of collusion against the process server and filing of FIR which has not resulted in any adverse action against the process server, as nothing of this nature could be pointed out by the learned counsel for the appellant – defendant, it SBCMA NO.278/1995 – M/S SINGHVI MACHINERY STORES V/S SMT. KANCHAN DEVI :JUDGMENT DTD.13.5.2009 5/6 does not mean that the report of the process server should be disbelieved. From the facts of the case, it appears that the defendant – appellant is not only close relative of the plaintiff, but has been also attending the Court proceedings in other matters as admitted in his statement before the Court recorded on 25.9.1993 in the end of which he has stated that his one or two cases are going on in Sessions Court and he kept on coming to the Court and he also admitted relationship of the plaintiff as his aunty and that Gyan Singh Modi is his partner. The learned trial Court has also noted in para 17 of its order that if the appellant defendant had come to know of the exparte decree on 2.8.1990 only on 21.1.1991, there was no need to file the application under Section 5 of the Limitation Act seeking condonation of delay, but for such application filed on 24.1.1991, the appellant had filed an application under Section 5 of the Limitation Act seeking condonation of delay from 2.8.1990 to 24.1.1991. Moreover, the learned trial Court also found that the registered notice served by the plaintiff's advocate Ex.A-10 was sent to both the partners and whereas the present defendant – appellant Bhopal Singh refused to accept the said notice, other partner Gyan Singh Modi accepted the said notice dtd.19.2.1987 and A.D. Receipt of the same was on the record. 6. Thus, it is clear that the present appellant – defendant despite the said notice having been served on one of the partners and even summons of Court having been served on one of the partners, was SBCMA NO.278/1995 – M/S SINGHVI MACHINERY STORES V/S SMT. KANCHAN DEVI :JUDGMENT DTD.13.5.2009 6/6 only trying to avoid the trial by one method or other and by levelling even false allegations against the process server. This conduct of the defendant does not entitle him to any relief at the hands of learned trial Court for setting aside of exparte decree nor such conduct and record of case inspires any confidence in this Court that the appellant – defendant was prevented by the sufficient cause in not appearing before the learned trial Court and on the other hand, he deliberately avoided the trial by refusing to accept the summons of the Court and being aware of the proceedings, did not deliberately participate in the same. 7. Consequently, this appeal of the defendant against the order dtd.29.5.1995 rejecting the application under Order 9 Rule 13 C.P.C. deserves to be dismissed and the same is accordingly dismissed. No order as to costs. (Dr.VINEET KOTHARI)J. Ss/-