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Judgment
In this revision filed under section 115 of the CPC, the applicant has assailed the order dated 27.4.2012 passed by Ist Civil Judge Class-II,
Khurai district Sagar in MCC No.14/08 whereby the application preferred by the respondent under Order 9 rule 13 CPC and another application
filed under section 5 of the Limitation Act was allowed by the court below.
Briefly stated, the applicant filed a suit for recovery of Rs.10,425/- with interest against the respondent. The trial court issued the notice which
was served on the High Court of Madhya Pradesh brother of the present respondent, namely, Raju Jain. Receipt of such notice is filed as
Annexure P/1. Since despite service, the respondent did not appear. The court found that the said service is sufficient and in consonance with
Order 5 rule 15 CPC. The court below proceeded ex-parte against the respondent and passed the judgment and decree dated 13.3.2007 in Civil
Suit No.42-B/06.
The respondent did not comply with the judgment and decree and, therefore, the present applicant instituted execution proceedings. The
respondent filed MJC No.14/08 under Order 9 rule 13 CPC by contending that he came to know about the proceedings of C.S.No.42- B/06
only when the matter was put to execution. Application was filed on the ground that he has no brother like Raju Jain and hence notice cannot be
treated to be served on the respondent in C.S.No.42-B/06. The present applicant placed reliance on the certificate issued by the Gram Panchayat
dated 6.09.2008 wherein the Panchayat certified that respondents are six brothers including Anil Kumar Jain alias Raju Jain. The name of one Anil
Kumar Jain finds place in the revenue entry (Annexure P/4).
Shri B.K.Upadhyay, learned counsel for the applicant relied on the statement of respondent''s witnesses before the court below, namely,
Kaushal Singh and Vijay Ahirwar. By taking assistance from these statements, it is argued that as per these statements even if there exists some
contradiction, the fact remains that both the witnesses of other side deposed that one brother of respondent is Raju Jain. Thus, it is urged that the
court below has erred in allowing the application under Order 9 Rule 13 CPC.
Nobody appeared for the respondent on more than one High Court of Madhya Pradesh occasion.
I have heard the applicant at length and perused the record.
The record shows that the contention of the applicant has substance. The process server categorically recorded that the notice was served on
the brother of Abhay kumar i.e Raju Jain. The certificate of Gram Panchayat shows that respondents are six brothers including Raju Jain.
Interestingly, both the witnesses, namely, Kaushal Singh and Vijay Ahirwar who appeared on behalf of respondent, deposed that Raju Jain is name
of one of the brother of respondent. Hence, minor contradictions pales into insignificance when it is established that Raju Jain is one of the brother
of the respondent. Thus, I am of the view that the court below has mechanically allowed the application preferred under Order 9 Rule 13 CPC.
Resultantly, the order dated 27.4.2012 is set aside. Revision is allowed.