t^^^ ^ IN THE HON'BLE HIGH COURT OF JUDICATURE FOR CHHATTISGARH AT BILASPUR Writ Petition (227) No. \^6»i of 2010 SIISLE •B PETITIONER: ^?.l?'^ ^•^oS^-V^ ^^kwf^3"^ ¥ls£"f"_...--1-;""" ^fi--' RESPONDENT: Ramesh Kumar Jadhwani, S/o Shri Dwarika Das Jadhwani, aged about 59 years, R/o D-92, Near Pani Tanki, Shailendra .Nagar, Raipur, Tehsil and District Raipur (CG) Versus Pitambar Das Bajaj, aged 56 years, S/o Shri Dharmu Mal Bajaj, R/o E/2/35/7 Sector-7, New Rajendra Nagar, Raipur, Tehsil and District Raipur (CG) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA HiGH COURT OF CHHATTiSGARH: BiLASPUR Single Bench: Hon'ble Shrt Manindra Mohan Shrtvastava. J. PETiTSONER RESPGNDENT WRIT PETITION (227) N0.146S/2010 Ramesh Kumar Jadhwani Versus Pitarnbar Das Baiai Present: - Shri ShyamaS niaidu, counsei for fhe peiitioner. ORAL ORDER (Passed on 22 April, 2010) This petitton has been filed by the petitioner aggrieved by order dated 01/02/2010 (Annexure P-1) passed by 1 Additional District Judge, Raipur in MjC no. 1/09. Petitioner/plaintifT fiieri a suit against respondent for recovery of Rs.2,34,000/- wfterein an ex-parte decree was passed on 25/09/08. Respondent thereafter fiied an appiication under Order 9 Ruie 13 read with Section 151 CPC for setting aside ex-parte decree on the ground that there was no service of surnmons on him, he vi/as proceeded ex-parte and thereafter ex- parte decree againsf him was passed. 2. Learned Court beiow vide impugned order dated 01/02/2010 aiiowed the appijcation and set aside the ex-parte decree dated 25/9/08 hoiding that there was no proper service of summons in accordanc-e with iavv on me respondent 3. Assaiiing the aforesaid order, ieamed counsei for the petitioner submitted that even though there w-as proper servic®of surnmons on tha respondent as prescribed under the provisions of Order 5 of the CPC; iearned Court beiow exceeded its jurisdictlon in setting aside the ex-parte judgment and decree dated 25/09/2K)8. Leamed counsei for the petitioner submits that while setting aside ex-parte decree, ieamed Court beiow overiooked the fact reiating to admission of the respondent in respect of payment. 4. From the perusai of the impugned order, it is reflected that the iearned Court below h-as set aside the ex-parte decree after considering the material and evidence on record. Respondent - Pitambar Das Bajaj and his wife Smt. Rekha Bajaj were examined to depose that the notices were never serv'ed upon thern and they subsequentiy denied that the process server ever came to his wife on 20/08/2ixi8 and aiso denied that the wife of respondent refused to take notice. Learned Court beiow has aiso considered ths svidence of process serv'er- Bhaurao Nirapure. it has been heid by the leamed Court beiow that in the sumrnon (Exhibit D-1) "vvherein refusai has been recorded, neither the narne of any resiuent of the nearb'y' piace has been recorded nor signatures have been taken. Though the process seroer has admitted that there are other houses around the house of the defendant, he has denied that he obtained signature of any of the persons. He has aiso not uisciosed in his report attached with the summons as to who identified the vflfe of the defendant. On the aforesaid flnuing, tbe tearned Court beiow has come to a conclusion that there is no proof of valid service of sumrnons on the defendant. Leamed Court beiow has aiso taken into consideration that the appiication for setting aside the ex-parte decree has been fiied promptiy. 5. Considering the provisions of Order 5 Rule 17 and 19 of the CPC, it is clear frorn the finding of the learned court beiow that after refusai as the process .-.^ BWrfilAtelfe'tiWfflNB!B8SNBJlSSI'S838BIBISIIi w e 'y^.^j" vmsa^ ^^s server did not record the name and address of the pereon by whom the house was identified or in whose presence the copy of summons w'as affixed does not suffer from any jurisdictionai error or perversifry. Provisions of Order 5 Ruie 17 envisages in the event of refusal to take notice, the seroing ofttcer is obiiged to affix a copy of summon at the outer door or sorne other conspicuous part of the house in which the defendant ordinariiy resides or carries on business or personaiiy works for gain and shaii return the original record to the Court frorn which it was issued, with the report endorsed thereon or annexed thereto regarding afRxation of the copy as also circumstances under which ii was done. The pro'visions also requires the process seiver to state the name and address of the person (if any') by whom the house was identified and in whose presence the copywas affixed. After going through the impugned order as aiso the staternent of the Serving Officer, Bhaurao Nirapure (certifjed copy of the sarne was piaced before the Court at the tirne of arauments), it is ciear that serv'ice was not rnade and report submitted faiied to estabiish seivice of sumrnons in accordance with the provisions of Order 5 Ruie 17. 6. in the opinion of this Court, t'nere is no error of jurisdiction or perversity in the finding of the iearned Court beiow that there was no service of surnmons in accordance wifh iavi/. Consequentiy, no case 'warranting interference under Article 227 of the constitution of india is rnade out. The petjtion Is summarily dismissea' without notice to ttie oth« ~~; ~ ~—-—-—_._ Sd/- Manindra Mohan Shrivastava Judge