^s^ ^3 t4>--"" ^ ^ IN THB HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARHt AspeUant .Defendant JRespottdent Plaintiff ^- Misc. Appeal Nojl4 / 2006 D ^" Ashok Kumar Sahu, aged about 30 years, S/o Radhelal Sahu R/o Budhwari para, Infront of Dr. Chouhan House, Dongargarh Distt. Rajnandgaon Versus ^Madhusudan aged about 37 years, S/o Durga Shanker Agrawal R/o Narsingh Ward, Infront of Guttani house, Dongargarh, Distt.Rajnandgaon. APPEAL UNDER ORDER 43 RULB l Idl OF THE CODE OF CIVIL PROCEDURE XI-HC-78: N1 OT^T^rf^FTT^ <TSn"3^R?Tst)^l<5b HIN^I «itii<?r» 3:5cT ^TrqT^RT," ^TTIWl <o, ^d 1<M y< ^p ^^^0.7AA ^* ^ ^- 200^ ^ sii^^i^ s(w (yii^^r) ^Fcn'^TC Hf?cT 3TT^T 13.11.2006 1 Appeliaht-Ashok Kumar Respondent-Madhusuda|n At the request of the p^ today. This appeai is directec] passed by the 1st Additioi| IVIisoeltaneous Judicia! case N| under Order 9 Ruie 13 C.P.C.I Kumar Sahu for setting aside t| 18.06.2004 against the appei| Rs.60,000/- was dismissed. Brief facts are that oil appearance of the defendant| defendant/appellant was returrl with the report that on 21.12.^ and made enquiries about t^ defendant was not present. H| gone out of village. Wife of t^ who refused to take a copy service by affixture of the ncj Pursuant to such report given First Additionai District Jud^ defendant and uttimately on l^ passed an ex partejudgment <=hl^fd41Tl WT^ff ^:fec^'<Rl«l< ^ 3Tf^T 3TT^T 3ahu by Shri Parag Kotecha, Advocate. by Shri Amiyakant Tiwari, Advocate. rties, this Misc. Appeai is heard finally against an order dated 18.01.2006 lal District Judge, Rajnandgaon in 3. 17 of 2004 whereby the applicatlon filed by the defendant/appetlant-Ashok ie ex-parte judgment and decree dated ant/defendant-Ashok Kumar .Sahu for 15.01.2004, the suit v/as flxed for The summons issued against the led by the P^>cess Server-Kewal Das 003 v^hen he \A/ent to sen/e the notice B defendant in Budhwari locaiity, the 3 was informed that the defendant had e defendant was present at the house, rf the notice, due to which,he made tice on the main door of the house. by the Process Ser^er Kewal Das, the ie proceeded ex parte against the .06.2004 i.e. after more than 5 months snd decree for Rs.60,000/- against the ^ XI-HC-78 3:5^'<ii'4|i<'i*<, ^tn'y<)<$, (^c'ii'yy *11*1<?11 StlHKft ^200 3TTNr^T^i<^ cCT'W^TsCTW r:. 3ii^iMsim (<^3g^T) ^cTTW5ETf^cf3:n^T "" S' defendant aiong with jnteres] defendant from the date of suitl 'pcjrt The defendant preferrecf 13 C.P.C. which was registere^ pleaded that the plai:ntiff.had| Kewai Das, got a:faise repcji summons of th.e defendant !t wife refused to take notice noil on the main door of the hous^ that the defendant came to decree for the fir.st time on 21 under Order 9 Rule 13 C.P.C) application was supported by. Kuieshwari. The :p!aintlff-r defendant in toto and prayec| dismissed. The 1^ Additional ;an enquin/ and recorded the Kuieshvvarl D.W.2.as al.so the N.A.No.2. Shri Parag Kotecha, iea{ argued that the testimpny of show that he was aoting in There was material variance i.r| was attested by one witnes^ reveaied in paragraph 3 that servlce. Paragraph' 2 of the <?hl<ll<vt<fl<rl HW^ff ^ fe^ <f^l«l< ^3?ri^T^n^T at the rate of 6% payable by the ili recovery. an appiication under Order No.9 Ruie as.Misc. JudlclaS case No.17/2004. He in collusion with the Process Sen/er of .sen/ioe by affixture sent on the ^jvas pteaded that nerther the defendants did the Process Server affix the notioe of the defendant. it \vas also pieaded t<|now about the ex-parte judgment and '.09.2004 and preferred an application within limitation on 08.10.2004. The feiffidavits of the defendant and his wife- denied the pieadlngs of the that .the application was liable to be IDistrict Judge, Rajnandgaon conducted fetatement of Ashok Kumar D.VV.1 and ^tatement of Process Sen/er-Kewai Das reslpondent |ned oounsel for the defendanVappeiiant Pr|ocess Server Kewal Das cieariy goes to lcoilusion with the plaintiff/respondent. •the report of t-he Process Sen/er which ^ Surendra and hls testimony, v\/hjch ^ne Deepak was present at the time of Itestimonv of the Process Sen/er aiso XI-HC-78 S^^l^Krt^, ^Tn^4l<o, fst<ni<riy< <TW<?T1 a»tT1<b ^200 w^T^rf<^i<=h cTSTT 3TT^T ^TToF /.., 311^1 451 ch (^cii^q^T) ^cTT^R: ^fN W^ST -3- shov^ed that he made no effol the defendant or to ascerN defendant. Lastiy, it was sub| of the Process Server left no collusion with the piaintifT-decrj servlce.by affixture. On W^ impugned order dafed 18.01.^ ex-parte judgment and decr^ B/2003 was aiso iiabie to be| decision rendered by this Coi| 2005(2) C.G.LJ. S68. On.the other hand.-.Shr) on Tea_AuatjQn Ltd. v. Gfal Sypreme:279 opposed this i^ ex-parte jydgment and decre^ costs. Having considered the| record of Clvil Suit No.44-B/2C| Case No. 17/2004, the testir|iony and the summons. of the def< report of service by affixture The report. of Process Server 4 as to the person who identifiecj Kuteshwari and.aiso do.es not service of notlce. The report 4 been slgned by a witness narr|el <=hl^fcn41^ W^ft' ^* te^l" ^TCTT ^3Tf^T3TI^T 1-ts to enquire about the whereabouts of tin the looation of the house of the ^nitted that paragraph 5 of the testimony |oom for any doubt that he v^/as actlng in ^e-holder and had given a faise report of [ese premlses, it was urged that the 1006 vy'as ii'abfe to be set asi'Ge and fhe ^ dated 18.06.2004 in Qvil Suit No.44- set aside. Retiance ^vas placed on a trt sn Kunjlai vs. Khorbehreen & o^ers AmiyaKant Tiwari while piacing reiiance t^e Hii! Tea tndustrv & Anr. 2008 (7) isc. Appeat on!y on the ground that the may be set aside but subject to heavy riva! submissions, I have perused the i03 and aiso the record of Miso. Judiciai of the Process Server Kev/ai Das endant issued fbr 15.11.2004 and the written by Process Server Kewal Das. )H the surnmons does not give any detail I the house of the defendant and his wife ^eveal the name of the iady who retused frf Process Server aiso shows that it has ^ly Surendra, vv^ho was not examlned by XI-HC-78 3TT^T^ R^ich cCT'3:n^T$b^l<=b \ •-v ^. 3:S|.^TPn?RT, ^Tfl^4j<o, fa^l<rl^< +11HC11 ShHlctl ^ 200 3l 1^1 M?tch ( ^c<\y{<^T) ?;^TTajK ^(?cT3n^?T — ^-\ the plaintiff/respondent. Proces|s paragraph 3, stated that the n^ the time of se^ice by affi^ Paragraph 4 of the testimony one neighbouring iady had However, the name of that Server in his .report as mand< paragraph 5, the.Process Sen/{ plaintlff-decree-holder to the hotel. He aiso adrnitted that snacks. , ; is|s Server Ke\vaiDas, in his testimony in |me of the person who was present at j(ture was perhaps Deepak Kumar. the Process Server aiso shows that Identified the wife of the defendant. was not mentioned by the Process i^ted by Order V Rule 18 C.P.C. !n ^r aiso deposed that he came v^ith the Qourt and had snacks with him in the jie dld not make any payment for the la({iy • Under Order V Rule 18,| to endorse on the summons not which the summons were ser^etJ person v\/ho identified the persc^n tender of summons. In the p| Ser^er Kewa! Das read with th^ goes to show that the name an|d person to whom the notice v^as| that Process Sen/er Kewa! Dast at the time of reporting service t^ Placmg..reliance cn Kuj opinlon thatnon-mention of th^ identlfled the :h:ouse and the and refused. amounts t6 non-sefl provides a valid ground to the ^ <=bi^Tcn41Ti ^i^i^T ^ te^ <Ri^6i< ^3Tf^T3T|^T it is necessary for the Process Server only the time when and the manner in but aiso the name and address of the sen/ed and Vvfitnessed the de!ivery or •esent case, the testlmony of Process endorsement on the summons cieariy address of the person identifying the tendered vvas not stated. It also shows vvas acting in coiiusion with the plaintlff •y affixture. (supra), ! am of the considered name and address of the person who to whom the notice was tendered ^ice of summons on the detendant and ^iefendant for making an appiicatson fbr pe|rson XI-HC-78 3TT^r^[f^TT^ cTSTT 3n^T9bMiob kU iAj^' ^ 3:5ET <=WH?PT, ^Tfi<-ljl<o,' fadKrl^i ^IHdl ShHKft ^ 200 3ll^(<45|ch (^qi^q^) B^TT^K ^fgcT 3T^?T -r' decr^e setting aside ex-parte 18.1.2006 passedin Misc., Additional District Judge, Rajrjiandgaon the ex-parte Judgment and No. 44-B/2003 is liableto be dedree S^it So far.as the contentic costs should be imposed on th liabie to be rejected. The pia Sen/er Kewal. Das and got endorsed on the summons of| appiicatiorr" sypported by an ^ Judgment ^nd decree wW\n t^ the question .of awarding cos| anse. Consequentiy, M.A is passed by the. 1 Additional C| aside. The ex-parte judgmen| B/2003 vide judgment dated 11 are directed to appear befcj 'Rajnandgaon on 7th of Decemi| M.C.P;No.194of2006fl Certified copy as per rul <=b 1^lfd41rl ^l l *4crlT ^* ^^ <fa^cL l < ^3Tf^T3^T Consequently, the order dated udicial Case No. 17/2004 by the 1st is wholly contrary to !aw arid dated 18.6.2004 passed In Civil Suit aside ^n of Shri Amiyakant Tiwari that heavy |e defendant/appellant Is concerned, it is Intiff acted in cotluslon with the Process a false report of sen/ice by affixture the defendant The defendant fiied an fridavit after coming to know about the e prescribed period of limitation. Thus, ts on the appeiiant/defendant does not ailowed. The order dated 18.01.2006 'istrict Judge in M.J.C.No.17/2004 is set and decree passed in Civil Suit No.44- 3.06.2004 is also set aside. The parties 're the first Additionai District Judge, )er, 2006. pr stay is accordingly disposed of. &s. Sd/- Dilip Raosaheb Deshmukh Judge P.T.O.