Deva Ram vs Rajendra Kumar and Others

Vineet Kothari, J.—These two appeals are directed against the order dtd.20.7.2004 passed by the learned Additional Dist. Judge (Fast Track) No. 2, Sirohi rejecting the application of the Defendant purchaser under Order 9 Rule 13 CPC for setting aside the exparte decree dtd.28.7.2003 in a suit for specific performance filed by the Plaintiff - Respondent Rajendra Kumar.

The learned Counsel for the Defendant - Appellant submitted that summons of the suit after the purchasers were added as Defendants in the said suit were not served on the Defendants -purchasers, but were served on the predecessor in title, the vendor, therefore, the said service could not be treated as sufficient and the application under Order 9 Rule 13 CPC deserves to be allowed, whereas the learned trial Court has wrongly rejected the said application and upheld the exparte decree against them.

The learned Counsel for the Plaintiff however opposed these submissions and prayed for dismissal of the present appeal.

Having heard the learned Counsel and upon perusal of the reasons given in the impugned order, this Court is satisfied that the reasons given by the learned trial Court in dismissing the application under Order 9 Rule 13 CPC are not sufficient and germane and therefore, the present appeal deserves to be allowed.

The summons in the instant case were required to be served on the purchasers themselves and the summons on the predecessor in title could not be held to be sufficient.

Consequently, these appeals are allowed and the impugned order dtd.24.7.2009 is set aside. The application under Order 9 Rule 13 CPC stands allowed subject to payment of cost of Rs. 1000/- by the Appellant to the Plaintiff. The suit shall be restored to its original number and shall be tried after the Defendants filed their written statement which may be filed within a period of one month from today. No extension of time shall be granted to them for this purpose. The parties may appear before the learned trial Court on 18.7.2011 in the first instance and the suit shall proceed from that stage. No order as to costs.