Rajasthan High Court - Jaipur
Ramji Lal S/O Shri Buddharam vs Radhey Shyam Jhunjhunuwala (Hakim) S/O ... on 11 September, 2023
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2023:RJ-JP:20395]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 15464/2018
Ramji Lal S/o Shri Buddharam, Aged About 71 Years, R/o
Malsisar, Tehsil Malsisar, District Jhunjhunu (Raj.)
----Petitioner
Versus
1. Radhey Shyam Jhunjhunuwala (Hakim) S/o Shri Madan
Lal Jhunjhunwala (Hakim), Aged About 45 Years
2. Pawan Kumar Jhunjhunwala (Hakim) Son Of Shri Madan
Lal Jhunjhunwala (Hakim), Aged About 47 Years
3. Ritesh S/o Shri Aditya Kumar Jhunjhunwala (Hakim),
Aged About 31 Years
4. Smt Ritu D/o Shri Adity Kumar Jhunjhunwala (Hakim),
Aged About 39 Years,
5. Smt Pinki D/o Shri Adity Kumar Jhunjhunwala (Hakim),
Aged About 37 Years,
6. Smt Meenu D/o Shri Adity Kumar Jhunjhunwala (Hakim),
Aged About 35 Years,
----Respondents
For Petitioner(s) : Mr. R. K. Daga
For Respondent(s) : Mr. Dinesh Bishnoi
HON'BLE MR. JUSTICE GANESH RAM MEENA
Order
Date of Reserve ::: July 20, 2023
Date of Pronouncement ::: September 11, 2023
1. The brief facts relevant for consideration to adjudicate the issue involved in the present writ petition are that the petitioner/ plaintiff filed a suit for specific performance of contract and perpetual injunction on 17.11.2014 before the Court of learned Civil Judge, Jhunjhunu (for short 'the learned trial court'). Treating the service of summons effected upon the respondent (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (2 of 20) [CW-15464/2018] Radhey Shyam Jhunjhunuwala and his non-appearance before the Court, an order for ex-parte proceedings was passed on 17.1.2015 and likewise the ex-parte proceedings were ordered against the respondent -Ritesh on 22.7.2015.
2. The petitioner /plaintiff got examined two witnesses and the evidence was closed on 3.9.2015. Finally, after hearing the arguments the learned trial court passed an ex-parte judgment and decree dated 11.1.2017 and decreed the suit in favour of the petitioner/ plaintiff.
3. After the ex-parte judgment and decree, the petitioner /plaintiff filed an application for execution of the judgment and decree which was numbered as 4/2017, Ramji Lal Vs. Radhey Shyam & Ors. On the application for execution of the decree, the Executing Court issued notices for the objections and thereafter, respondent Radhey Shyam appeared through his Counsel on 20.7.2017 and lateron respondent- Ritesh also appeared before the Executing Court. When the respondents/ judgment debtors did not submit any objections, the Executing Court closed their right to file objections on 22.2.2018 and the Executing Court further ordered the Sub-Registrar for registration of the sale deed. Thereafter, the sale deed was registered in favour of the petitioner/plaintiff- Ramji Lal on 28.2.2018 and consequence thereof mutation of the land which is subject matter of the sale deed was also opened in his name.
4. During the pendency of the execution application, respondents No.1 and 3 namely; Rahdey Shyam and Ritesh filed an application under Order 9 Rule 13 CPC along-with an application under Section 5 of the Limitation Act before the (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (3 of 20) [CW-15464/2018] learned trial court on 19.9.2017 for setting aside the ex-parte judgment and decree dated 11.1.2017 with the averments that there was no proper service of summons upon them and they only came to know about the ex-parte judgment and decree after receiving the notices from the Executing Court and further submitted that they could not file the application for setting aside the ex-parte judgment and decree in time because of floods in Bihar.
5. The petitioner/ plaintiff submitted reply to the application filed by the respondents / applicants under Order 9 Rule 13 CPC and submitted that respondent Radhey Shyam refused to accept the summons and therefore, the trial court passed the order for ex-parte proceedings against him on 17.1.2015. It was further stated that the other respondents were served by way of paper publication but they did not turn up and that's why the ex-parte proceedings were ordered against them on 22.7.2015 and finally the suit was decreed on 11.1.2017.
6. The trial court dismissed the application filed by the respondents/ defendants under Order 9 Rule 13 read with Section 151 CPC vide its order dated 14.12.2017.
7. Aggrieved by the order dated 14.12.2017 passed by the trial court, the defendants /applicants Radhey Shyam and Ritesh preferred an appeal No.7/2018 before the Court of learned District Judge, Jhunjhunu (for short 'the Appellate Court') and the said appeal was allowed by the learned Appellate Court vide its judgment dated 8.6.2018 setting aside the order dated 14.12.2017 passed by the trial court and allowed the application filed by the respondents/ applicants under Order 9 Rule 13 CPC (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (4 of 20) [CW-15464/2018] and further set aside the judgment and decree dated 11.1.2017 and restored the civil suit No. 82/2014 and ordered that the trial court shall proceed to dispose of the suit expeditiously.
8. Against the order dated 8.6.2018 passed by the learned Appellate Court, the present writ petition has been filed by the petitioner/ plaintiff.
9. Learned counsel for the petitioner/ plaintiff submitted that the learned Appellate Court has exceeded its jurisdiction and was carried away by extraneous consideration while deciding the appeal inasmuch as it has commented and went to discuss on the merits of the original case, whereas the issue before the learned Appellate Court was 'Whether the order passed by the learned trial court on the application filed by the respondents/ defendants under Order 8 Rule 13 CPC is just and proper or not? The findings of the Appellate Court on merits of the case at the stage of consideration of the application filed under Order 9 Rule 13 CPC is wholly without jurisdiction. Counsel further submitted that summons issued by the trial court were duly served upon the respondents/ applicants in accordance with the procedure given under the law as is revealed from the record. Counsel further submitted that the application for setting aside ex-parte judgment and decree was barred by limitation and no sufficient cause has been shown for the delay in filing the application for setting aside the ex-parte decree. Counsel further submitted that the respondents/ defendants were having the knowledge of the ex- parte decree on 19.7.2017, however, the application was filed on 18.9.2017 beyond the limitation period prescribed under law. In (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (5 of 20) [CW-15464/2018] support of his submissions, counsel has placed reliance upon following judgments:-
1. Mohamed Ali Vs. V. Jaya and Ors., reported in (2022) 10 SCC 477;
2. Shridhar Vs. Swamisharan, reported in 2013(2) DNJ (Raj.) 763;
and
3. Vishwabandhu Vs. Sri Krishan & Anr., reported in 2022 SAR (Civ) 125.
10. Counsel appearing for the respondents/ defendants No.1,3 and 4 submitted that there was no proper service of summons upon the respondents/ defendants which were issued by the trial court and the order for ex-parte proceedings against them as well as the judgment and decree passed by the trial court are not sustainable in the eye of law and deserves to be quashed and set aside. Counsel further submitted that the service of summons upon the defendant/applicant Radhey Shyam was treated as sufficient on the basis of the report that he has refused to accept the registered post, whereas in-fact neither any registered post was ever served upon him nor he refused to accept the same. Counsel also submitted that as far as the respondent/ applicant Ritesh is concerned, substituted service was proceeded by publication of summons in the daily newspaper i.e. Times of India, which has no wide circulation in the locality where the respondent/ applicant resides and therefore, the service of summons upon the respondents/ applicants cannot be treated as sufficient and therefore, the ex-parte judgment and decree dated 11.1.2017 passed by the trial court deserves to be set aside. Counsel further submitted that the respondents/ applicants have (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (6 of 20) [CW-15464/2018] not been allowed proper opportunity of hearing and therefore, the ex-parte judgment and decree dated 11.1.2017 passed by the trial court is in violation of principle of natural justice and the respondents/ applicants will suffer justice. In support of his submissions, counsel has placed reliance upon the following judgments:-
1. Sushil Kumar Sabharwal Vs. Gurpreet Singh, reported in SC 2002 (5) SCC 377;
2. Parimal Vs. Veena @ Bharti, reported in (SC) 2011 (3) SCC 545;
3. GMG Engineering Industries Vs. ISSA Green Power Solution & one other connected matter, reported in (SC) 2015 (15) SCC 659 ; and
4. Jarnail Singh Vs. Mohinder Kaur, reported in 2001(3) SLT 178.
11. Considered the submissions made at Bar by the counsels appearing for the respective parties and perused the material available on the record.
12. The basic argument advanced by the counsel appearing for the petitioner/ plaintiff is that the trial court after considering the material before it in regard to service of summons upon the respondents/ applicants and treating the service effected upon them, dismissed their application filed under Order 9 Rule 13 CPC for setting aside the ex-parte judgment and decree dated 11.1.2017 but the Appellate Court while allowing their application discussed the merits of the original case i.e. the case set up by the petitioner/ plaintiff in the suit. The Appellate Court in its judgment has observed as under:-
"geus mHk;i{k dks lqukA izLrqr n`"Vkarksa esa ekuuh; mPpre U;k;ky; ,oa ekuuh; mPp U;k;ky; }kjk vfHkfu/kkZfjr fl)kUrksa dk voyksdu fd;kA (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (7 of 20) [CW-15464/2018] orZeku izdj.k esa rF;ksa dks ns[ks rks ;g Li"V gS fd oknh jkethyky us ,d nkok fnukad 17-11-2014 dks fofufnZ"V vuqikyu bdjkjukek izLrqr fd;k FkkA tks bdjkjukek fnukad 01-08-2000 dk crk;k x;k gS vkSj blesa lafonk fnukad 30-03-2000 dh crkbZ xbZ gSA ;g Li"V gS fd oknh us bl nkos dks izLrqr djus ls igys ,d uksfVl izfroknhx.k dks nsuk dgk gS vkSj bldk tokc izR;FkhZ la0 1] 2 o 3 dh vksj ls izn'kZ&21 ds :i esa oknh ds vf/koDrk dks izkIr gqvk gS ftlesa ;g Li"V :i ls mYysf[kr gS fd _rs'k dqekj dh rhu cfgus 'kknh'kqnk gS vkSj vius llqjky esa jgrh gSA ;g Li"V gS fd bl uksfVl ds tokc esa ;g fy[ks gksus ds ckotwn izfroknh la0 4 ls 6 dk irk ogh fy[kk gS tks izfroknh la0 3 dk gSA i=koyh ij ;g Hkh Li"V gS fd fo}ku fopkj.k U;k;ky; ds le{k tks bdjkjukek lk{; esa izLrqr gqvk gS og izn'kZ&1 gS vkSj 10@&#i;s ds LVkEi ij gS ftldk LVkEi ftyk dks"kkxkj if'pe pEikj.k¼csfr;k½ dk fnukad 21-07-2000 dks Ø; djuk dgk x;k gS vkSj ;g izn'kZ&1 bdjkjukek fdlh Hkh uksVsjh ls uk rks lR;kfir gS vkSj uk gh blij 'kadjyky o bZ'ojh izlkn ds vykok vU; fdlh xokg ds gLrk{kj gSA 'kadjyky fo}ku fopkj.k U;k;ky; ds le{k crkSj ih0MCY;w0 2 lk{; esa vk;k ijUrq 'kadjyky us dgha Hkh viuh lk{; esa vius gLrk{kj dks f'kuk[r ugha fd;k vkSj ;g Li"V gS fd b'ojhizlkn lk{; esa ugha vk;kA fo}ku fopkj.k U;k;ky; dh dk;Zokgh dks ns[ks rks ;g Li"V gS fd ih0MCY;w01 jkethyky o ih0MCY;w0 2 'kadjyky ds c;ku fnukad 03-09- 2015 dks gq, ijUrq blij fo}ku ihBklhu vf/kdkjh ds gLrk{kj ugha gSA ;g Hkh Li"V gS fd jkethyky ds 'kiFk&i= ds izFke i`"B dks NksM+dj 'kiFk&i=ksa ij Hkh fo}ku ihBklhu vf/kdkjh ds gLrk{kj ugha gS] blls T;knk vfu;ferrk orZeku izdj.k esa ugha gks ldrhA tc ge vizkFkhZ }kjk fn;s x;s tokc izn'kZ&21 dk voyksdu djs rks bUgksaus Li"V :i ls vafdr fd;k gS fd 'kadjyky o bZ'ojh izlkn muds nq'eu gS vkSj os jk/ks';ke] iou dqej o fjrs'k dqekj dh lEifRr dks gM+ius ds "kM;U= esa 'kkfey gSA orZeku izdj.k esa mijksDr vlkekU; ifjfLFkfr;ka orZeku okn esa fo}ku fopkj.k U;k;ky; dks lko/kkuh ls ns[kuh pkfg, Fkh tks ugha ns[kh xbZA ;g Hkh Li"V gS fd fo}ku fopkj.k U;k;ky; }kjk fu.kZ; ikfjr djrs le; lafonk dh fofufnZ"V vuqikyuk ds lUnHkZ esa bl rF; dks xkSj ugha fd;k fd 10@&#i;s dk LVkEi gS vkSj Ik;kZIr :i ls eqnzkfa dr ugha gSA ;g Hkh Li"V gS fd izn'kZ&1 lk{; esa xzkg~; rHkh gks ldrk gS tcfd og Ik;kZIr :i ls eqnzkfa dr gksA bl lUnHkZ esa ekuuh; jkt0 mPp U;k;ky; }kjk vfouk'k dqekj cuke fot; d`".k feJk ,0vkbZ0vkj0 2009¼,l0lh0½ 1489 ds izdj.k esa vfHkfu/kkZfjr fl)kUr n`f"Vxr j[ks tkus ;ksX; gS tks lkekU; fof/k gS vkSj bldh ikyuk djuk fo}ku fopkj.k U;k;ky; ls visf{kr FkkA"(Downloaded on 11/11/2023 at 07:55:34 PM)
[2023:RJ-JP:20395] (8 of 20) [CW-15464/2018]
13. The provisions of Order 9 Rule 13 CPC reads thus:-
"13. Setting aside decree ex parte against defendants.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."(Downloaded on 11/11/2023 at 07:55:34 PM)
[2023:RJ-JP:20395] (9 of 20) [CW-15464/2018] The provision, as quoted above, clearly speaks that in case of an ex-parte decree the defendant may apply for setting aside such decree and if the Court is satisfied that the summons were not duly served or that the defendant was prevented by any sufficient cause from appearing before the trial Court when the suit was called for hearing, the Court may order to set aside such ex-parte decree. The Order 9 Rule 13 CPC nowhere says that while setting aside the ex-parte decree the matter is required to be considered on its factual and legal merits. In the present case, the Appellate Court while setting aside the ex-parte decree has discussed the merits and demerits of the issue agitated in the main suit and has further directed the trial court to proceed with the suit. The findings given and the observations made on merits of the issue agitated in the original suit while deciding the application filed under Order 9 Rule 13 CPC is not sustainable in the eye of law.
14. Counsel appearing for the petitioner/ plaintiff submitted that there was proper service of summons upon the respondents/ applicants. The trial court dismissed the application filed by the respondents/ applicants under Order 9 Rule 13 CPC considering that there was proper service of summons effected upon the respondents/ applicants but they did not choose to appear before the trial court when the suit was called for hearing and therefore, the ex-parte proceedings were ordered against them and finally the ex-parte decree was also passed on 11.1.2017. The Appellate Court while allowing the appeal filed by the respondents/ applicants has observed that the service of summons upon the applicant Radhey Shyam was treated to be effected in view of the (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (10 of 20) [CW-15464/2018] refusal of accepting the registered post, whereas the service upon the respondent/ applicant Ritesh was treated to be completed in view of the substituted service by mode of paper publication. The Appellate Court in regard to the service of summons upon respondent /applicant Radhey Shyam has observed that ";g Li"V gS fd izkFkhZ la0 1 dh rkehy ysus ls bUdkjh dh fjiksVZ ds lkFk gS tks ysus ls bUdkjh fnukad 23-12-2014 dks gqbZ gSA"" As regards the service of summons upon the respondent/ applicant Ritesh is concerned, the Appellate Court has observed that ";g Hkh Li"V gS fd fnukad 02-05-2015 dks jk"Vªh; Lrj ds nSfud v[kckj esa izdk'ku dh vuqefr nh xbZ Fkh tcfd tks izdk'ku gS og iVuk ds laLdj.k esa gSA ;g Li"V gS fd U;k;ky; dk vkns'k jk"Vªh; Lrj dk Fkk ftldk vFkZ lkekU; :i ls jk"Vªh; Lrj ij lHkh laLdj.kksa esa izdk'ku dk Fkk ftldh Hkh ikyuk orZeku izdj.k esa gqbZ gks ;g iznf'kZr ugha gksrkA vr% mDr ifjfLFkfr;ksa esa Ik;kZIr :i ls izkFkhZx.k dh rkehy gqbZ gks] ;g ugha ekuk tk ldrkA vr% fo}ku fopkj.k U;k;ky; }kjk izkFkhZx.k dh Ik;kZIr rkehy ekudj fof/kd ,oa rF;kRed =qfV dkfjr dh xbZ gSA"
15. It is not the case of the respondent/ applicant Radhey Shyam that the summons sent through registered post were not at the proper address and there is no dispute that respondent /applicant Radhey Shyam refused to accept the summons sent through registered post. The Hon'ble Supreme Court in the case of Vishwabandhu (supra) has observed in para 19 as under:-
"19. The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (11 of 20) [CW-15464/2018] article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr2 made following observations:-
"14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh3 : State of M.P. vs. Hiralal & Ors.4 (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (12 of 20) [CW-15464/2018] and V. Raja Kumari vs. P. Subbarama Naidu & Anr.5]. ... ...."
The Hon'ble Supreme Court in the case of Jarnail Singh (supra) in para 3 has observed as under:-
"3. We have heard counsel for the parties and perused the record. The High court was of the view that since the newspaper daily "Ranjit' printed and published from Patiala is approved by the High Court for purposes of substituted service, the publications of notice in the said newspaper was sufficient service on the appellant. The case of the appellant was that daily newspaper "Ranjit' has no circulation at all in village Badheri, Chandigarh. The High Court has not recorded any finding that daily newspaper "Ranjit published, from Patiala has circulation in Chandigarh, In absence of such finding we are of the view that the appellant has no notice of the suit. The appellant has made out sufficient cause for setting aside the ex parte decree as well as the appellate and revisional orders. For the aforesaid reasons we set aside the judgment of the court's below. The trial Court is directed to proceed with the suit after giving opportunity to the appellant."
The Appellate Court while setting aside the order of the trial court rejecting the application filed by the respondents /applicants under Order 9 Rule 13 CPC did not observe that there was no proper circulation of the daily newspaper through which substituted service was ordered and effected upon respondent/ (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (13 of 20) [CW-15464/2018] applicant Ritesh and therefore, the case of Jarnail Singh (supra), is not applicable to the facts of the present case.
Counsel for the respondents has also relied upon the judgment delivered by the Hon'ble Supreme Court in the case of Sushil Kumar Sabharwal (supra) wherein the appellant has himself in the witness box deposed on oath that no summon was tendered to him by any process server of the Court, whereas there is no such finding of the Appellate Court in the present case that the summons through registered post were not sent to the respondent/ applicant- Radhey Shyam and he did not refuse to accept the same. It was also argued on behalf of the petitioner/ plaintiff that there is a delay in filing the application under Order 9 Rule 13 CPC by the respondents / applicants for setting aside the ex-parte judgment and decree dated 11.1.2017 as the same was filed on 17.9.2017 after expiry of the limitation period and no sufficient cause has been shown for filing the application by delay.
Counsel for the petitioner /plaintiff has relied upon the judgment delivered by the Hon'ble Supreme Court in the case of Mohamed Ali (supra) and the judgment passed by this Court in the case of Shridhar (supra), in support of his arguments.
The Hon'ble Apex Court in the case of Mohamed Ali (supra), in para 20, 21 and 22 has observed as under:-
"20. Even otherwise considering the impugned common judgment and order passed by the High Court, it appears that while setting aside the ex-parte judgment and decree, the High Court has commented upon the legality and validity of the judgment and decree passed by the learned Trial Court as if the High (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (14 of 20) [CW-15464/2018] Court was exercising the appellate jurisdiction against the judgment and decree passed by the learned Trial Court.
21. Before considering the judgment and decree on merits and/or expressing anything on merits on the legality and validity of the judgment and decree (ex- parte) the High Court was required to consider whether the learned Trial Court was justified in passing the ex-
parte judgment and decree or not. The High Court was also required to consider whether the learned Trial Court was justified in refusing to condone the delay of 1522 and 2345 days in filing the petition challenging the ex-parte judgment and decree.
22. Therefore, in the facts and circumstances of the case, the impugned common judgment and order passed by the High Court is unsustainable, both, on law as well as on facts. The High Court has exceeded in its jurisdiction while setting aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constriction of India. The impugned common judgment and order passed by the High Court is on irrelevant considerations and the relevant aspects as observed hereinabove have not been considered and dealt with by the High Court. Under the circumstances, the impugned common judgment and order passed by the High Court deserve to be quashed and set aside." This Court in the case of Shridhar (supra), has observed in para 8 to 10 as under:-
"8. Per contra, the contention of the respondent is that the present appellant was having knowledge of the suit as well as the date of hearing. He has alleged the fact of the suit in FIR. Final report was filed after investigation against which protest petition was filed by the present appellant before the competent court.(Downloaded on 11/11/2023 at 07:55:34 PM)
[2023:RJ-JP:20395] (15 of 20) [CW-15464/2018] Protest petition was rejected and revision was also filed against that order hence the present appellant was having ample knowledge about the pendency of the suit and of the proceedings. He has further relied on the provision of section 114 (f) of Evidence Act that there is presumption that the addressee has received the letters sent by the registered post and reliance has been placed on 2011 (3) SCC 545 Parimal vs Veena @ Bharti where proviso of Order 9 Rule 13 of CPC has been explained and it has been explained and it has been held in para 12 as under:
"It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein."
9. Further reliance has been placed on 2010 (9) SCC 157, Greater Mohali Area Development Authority and others vs Manju Jain and others where it has been held as under:
"that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post.(Downloaded on 11/11/2023 at 07:55:34 PM)
[2023:RJ-JP:20395] (16 of 20) [CW-15464/2018] However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra."
10. Again reliance has been placed on 1989 (2) SCC 602, Gujrat Electricity Board and another vs Atmaram Sungomal Poshani, it has been held as under:
"There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service."
11. Looking to the above legal position, it was the duty of the appellant to rebut the presumption of due service as the appellant has challenged the factum of service and alleged the fact that he has not refused the service but this burden has not been discharged by the present appellant. Further more he was having the knowledge of the suit in January, 2006 and wrongly it has been pleaded that he could know about the fact of decree on only 19.5.2006.
12. The court below has rightly rejected the application under Order 9 Rule 13 of CPC. There is no perversity or infirmity in the conclusion and reasoning of the court below. Hence, this appeal is dismissed."
(Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (17 of 20) [CW-15464/2018]
16. Counsel for the respondents/ defendants submitted that there is sufficient cause for filing the application by the delay because they were not having knowledge of the ex-parte judgment and decree prior to 19.7.2017 when they received the notice for filing the objections on an application for execution of the ex-parte decree. Counsel for the respondents/ defendants referred paragraph Nos.9, 10 and 12 of the judgment delivered in the case of Parimal (supra) as well as paragraph 8 of the judgment delivered in the case of GMG Engineering & Ors. (supra), which are reproduced as under:-
"9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient"
embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause"
means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (18 of 20) [CW-15464/2018] judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459).
10. In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR 1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).
12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application."(Downloaded on 11/11/2023 at 07:55:34 PM)
[2023:RJ-JP:20395] (19 of 20) [CW-15464/2018] "8. It is well settled that the expression 'sufficient cause' is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bonafide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence."
17. In the present case in view of the observations made above, it can be safely said that the service of summons of the suit proceedings were effected upon the respondents/ applicants and thereafter when they did not appear before the trial court while the case was called for hearing, the trial court ordered for ex-parte proceedings against them on 17.1.2015 and 22.7.2015 respectively and thereafter, the ex-parte decree was passed on 11.1.2017 on the basis of evidence available on the record. After the ex-parte decree the execution application was filed by the petitioner/ plaintiff and thereafter the notices were sent to the respondents/ applicants for filing their objections which were received on 19.7.2017 and 28.8.2017.
18. In view of the observations made above that there was a proper service of the summons of the suit proceedings upon the respondents/ applicants in the year 2015 itself and the application for setting aside the ex-parte decree has been filed on 18.9.2017 with an application for condonation of delay stating that the respondents / applicants came to know about the ex-parte decree only when the notices of execution application were served upon (Downloaded on 11/11/2023 at 07:55:34 PM) [2023:RJ-JP:20395] (20 of 20) [CW-15464/2018] them on 19.7.2017 and 28.8.2017. It cannot be accepted that the petitioner/ plaintiff has sufficient cause of delay in filing the application for setting aside the ex-parte decree.
19. It is also not in dispute that the ex-parte decree dated 11.1.2017 has already been executed upon and the sale deed has also been registered in compliance thereof during the pendency of the appeal before the Appellate Court.
20. In view of the discussions made above and considering the fact that ex-parte decree dated 11.01.2017 has already been executed upon, this Court finds that the order dated 08.06.2018 passed by the Appellate Court is contrary to the law as well as the facts available on the record and therefore, the same deserves to be quashed and set aside.
21. As a result, the writ petition is allowed and the order dated 08.06.2018 passed by the Court of learned District Judge, Jhunjhunu (Raj.) in Civil Misc. Appeal No.07/2018 is set aside.
22. In view of the order passed in the main petition, the stay application and pending applications, if any, also stand disposed of.
(GANESH RAM MEENA),J Sharma NK-Dy. Registrar (Downloaded on 11/11/2023 at 07:55:34 PM) Powered by TCPDF (www.tcpdf.org)