1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER Smt. Gopali Sarkar Vs. Himanshi & Ors. (S.B. Civil Writ Petition No.3122/2010) Date of Order :- May 20, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Vikas Jain, for the petitioner. Mr.Shrey Gaharana, for the respondent No.1. Aggrieved by the order dated 19.01.2010, passed by the learned Additional District Judge, No.6, Jaipur City, Jaipur, whereby the learned Judge has rejected the petitioner's application under Order 9 Rule 7 CPC, the petitioner has approached this Court. Briefly the facts of the case are that on 21.04.2008, the respondent-plaintiff, Smt. Himanshi, filed a suit through her next friend and natural guardian, Smt. Sudha Mehta, for rendition of account, for declaration of sale-deed dated 16.12.1995 and 02.03.1996 as voidable, and for compensation. In her plaint, she claimed that although she also had a share in the property in dispute, the defendant No.1, Sh. Pradeep Sen, defendant No.2, Sujata Das, and defendant No.3, Smt. Gopali Sarkar (the petitioner before this Court), by executing the aforesaid two sale deeds, had sold the undivided, immovable property of Sh. Dhruvnath Sen to defendant No.4, M/s Bohra Enterprises Pvt. Ltd. and defendant No.5, M/s Anukampa Buildcon Pvt. Ltd. Therefore, she prayed that her share should 2 be partitioned and defendant Nos.1 to 5 should be directed to handover the physical possession of the property so partitioned in her favour. According to the petitioner, while defendant Nos.1 & 2 had received summons issued by the court, she neither received the summons, nor refused to accept it. According to her, she was unaware of the proceeding of the suit. Therefore, she could not appear before the concerned court. Since the petitioner did not appear before the court, vide order dated 01.09.2008, the civil court decided to proceed ex-parte against her. Furthermore, according to her, she came to know about the pendency of the suit when she received a show-cause notice/summon of the application for appointment of receiver on 19.09.2009. Immediately, she spoke to her sister, Smt. Sujata Das, the defendant No.2, who lived in Jaipur, about the pendency of the civil suit. She also came to know that the court was proceeding ex-parte against her. Therefore, she immediately filed an application under Order 9 Rule 7 CPC for setting aside the ex-parte proceedings. The respondent-plaintiff filed her reply. After hearing both the parties, vide order dated 19.01.2010, the learned court not only rejected the application, but also imposed a cost of Rs.500/- upon the petitioner. Hence, this petition before this Court. Mr. Vikas Jain, the learned counsel for the petitioner, has contended that the learned Judge has rejected the application ostensibly on the ground that on the envelope of a registered post containing the notice, dated 24.05.2008, there is 3 a remark of process server that the petitioner has refused to accept the delivery. However, the address written on the said registered post namely, “228, Chitranjan Park, New Delhi”, is an incorrect address. Furthermore, according to the order-sheet dated 19.07.2008, the learned court had directed that the plaintiff should submit the “complete address of the petitioner”. Thus, it is obvious that the registry/notice dated 24.05.2008 was sent to the wrong address. After 19.07.2008, there is nothing on record to show that the summons were, indeed, sent to the right address. According to the learned counsel, the correct address of the petitioner is “B-228 Chitranjan Park, New Delhi”. Lastly, since the registry dated 24.05.2008 was sent to the wrong address, the refusal to accept the registry cannot be read against the petitioner. In fact, the refusal of such a registry, which was sent on a wrong address, fortifies the case of the petitioner that no notice/summon was ever served upon her, and that she had never refused to accept the notice. According to the learned counsel, the learned court has failed to appreciate these crucial facts in their proper prospective. It has, thus, committed an illegality in rejecting the application under Order 9 Rule 7 CPC. On the other hand, Mr. Shrey Gaharana, the learned counsel for the respondent No.1, has contended that after 19.07.2008, the complete address of the petitioner was given. A new notice was sent to the correct address, at “B-228, Chitranjan Park, New Delhi”. According to the envelope of the registered post dated 19.08.2008, the petitioner had clearly 4 refused to accept the said registry. Thus, the petitioner cannot claim that the notice was not sent to the correct address. In order to buttress this contention, he has produced a copy of the registered letter and a copy of the back of the letter, which clearly indicates that there was refusal to accept the notice on 19.08.2008. According to the learned counsel, this fact was also brought to the notice of the trial court. Secondly, even if the trial court has mentioned a wrong date for refusal, even if, it has mentioned the dated 24.05.2008, it would not obliterate the fact that the petitioner has refused to accept the notice on 19.08.2008. Therefore, the order dated 19.01.2010, passed much after the refusal on 19.08.2008, is clearly justified. In rejoinder and in desperation, Mr. Vikas Jain has pleaded that even if the notice was sent to the correct address, it was not sent through proper procedure as contained in Order 5 Rule 9 CPC. Therefore, it cannot be said that notice was duly served upon the petitioner. Heard the learned counsel for the parties, perused the record and examined the impugned order. It is, indeed, a settled principle of law that the purpose of sending a notice is to inform a person about the existence of certain facts. It is also a settled principle of law that in case a person refuses to accept a notice or a summon issued by a court, the service of notice is deemed to complete. In the 5 present case, according to the petitioner, her correct address is “B-223, Chitranjan Park, New Delhi”. According to the registry dated 19.08.2008, the notice was sent to “B-228, Chitranjan Park, New Delhi”. Thus, clearly the notice was sent to the correct address. According to the cover of the registry, the acceptance of the notice was refused. Thus, according to law, since the notice was refused to be accepted, the notice is deemed to be served upon the party. Therefore, the petitioner is not justified in claiming that no notice was served upon her. Moreover, even if the learned court has not mentioned the refusal of the registry dated 19.08.2008, it does not dilute the fact that the refused registry is available on record. The refusal of the registry speaks volume about the conduct of the petitioner. Furthermore, since the registry did reach the correct address, since it was refused by the petitioner, it is too late in the day for the petitioner to claim that the registry was not sent through the procedure contained under Order 5 Rule 9 CPC. Even if, the procedure under Order 5 Rule 9 has not been followed, the fact remains that no prejudice has been caused to the petitioner. Once the registry was delivered at the correct address, once it has been refused by the petitioner for acceptance, the petitioner is estopped from claiming that the registry has not come through a procedure laid down under Order 5 Rule 9 CPC. 6 Lastly, according to the process server, the registry was refused on 19.08.2008. Therefore, the petitioner is not justified in claiming that she came to know about the pendency of the suit on 19.09.2009 i.e. after lapse of one year from the date of refusal of the registry. Therefore, the explanation given by the petitioner for filing the application under Order dated 9 Rule 7 CPC on 11.10.2009 is a fabricated defence. Since the petitioner has not given a reasonable cause for her non- appearance during the proceeding, the learned court was certainly justified in not only rejecting her application under Order 9 Rule 7, but also in imposing a cost of Rs.500/- on her. The litigants cannot be permitted to play foul, to feign ignorance and to take the court for a ride. Thus, the litigants who try to evade the process of the court in surreptitious manner, do not deserve the sympathy of the court. Such clever ploys deserve to be deprecated by the judiciary. Hence, there is neither any perversity, nor any legality in the impugned order dated 19.01.2010. The petition is devoid of any merit. It is, hereby, dismissed. (R.S.CHAUHAN)J. Manoj Solanki-