Subhas Chandra Agarwal vs Rameshwar Prasad Agarwal

K.K. Trivedi, J.

Heard finally with the consent of learned counsel for the parties.

This revision is directed against the order dated 21.09.2011 passed in Miscellaneous Appeal No. 07 of 2010 by XII Additional District Judge, Jabalpur, whereby the order dated 20.07.2010, passed in MJC No. 17 of 2009 by IV Civil Judge, Class-I, Jabalpur, has been reversed and an ex parte judgment and decree granted in favour of the applicant has been set aside. Facts not in dispute are that the applicant being landlord filed a suit for eviction of non-applicant/defendant in the Court of Civil Judge Class-I, Jabalpur. The non-applicant was proceeded ex parte in the said suit and ultimately the trial Court granted an ex parte judgment and decree on 18.10.2007. The application under Order 9 Rule 13 of CPC was made by the non-applicant for setting aside the ex parte judgment and decree on the ground that summon of the suit was not served on him and he came to know about the ex parte judgment and decree passed against him only on 06.09.2008, when in the execution proceedings he was served with the notice. Said application was opposed by the applicant and learned trial Court after considering various facts, reached to the conclusion that no case was made out to allow the application of non-applicant and to set aside the ex parte judgment and decree. The non-applicant preferred Miscellaneous Appeal against the said order which having been allowed by the Lower Appellate Court vide order dated 21.09.2011, this revision is required to be filed.

It is contended by learned counsel for the applicant that there was no justified reason shown by the Lower Appellate Court for reversing the order passed by the trial Court and setting aside the judgment and decree ex parte granted in favour of the applicant. It is contended that the Lower Appellate Court has wrongly held that the service of the summon of the suit on the non-applicant was not affected properly and as such it is contended that the order impugned is bad in law and is liable to be set aside.

Per contra, it is contended by learned counsel appearing for the respondent that in view of the well settled law in the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others, wherein the Apex Court has categorically held that in case there is non-compliance of provisions of Order 5 Rule 17 of CPC with respect to affecting the summon on the defendant or opposite party, a ground is made out to set aside the ex parte judgment and decree granted in favour of any such plaintiff, under Order 9 Rule 13 of CPC and, therefore, if the Lower Appellate Court has properly appreciated the evidence and has reached to the conclusion that there was specific non-compliance of provisions of Order 5 Rule 17 of CPC or Rule 53 of the M.P. Civil Court Rules, 1961, the order was rightly passed by the Lower Appellate Court setting aside the ex parte judgment and decree granted in favour of the applicant.

After hearing learned counsel for the parties at length and perusing the record, this Court is of the view that the Lower Appellate Court was right in holding that the summon of suit was not properly served on the non-applicant/defendant. In proper appreciation of evidence the Lower Appellate Court has categorically held that there was no such evidence available on record to show that specific mandatory provisions of Order 5 Rule 17 of CPC or Rule 53 of the M.P. Civil Court Rules, 1961 were followed by the process server while serving the notice of the suit on the non-applicant. In view of these findings, it cannot be said that the order was erroneously passed by the Lower Appellate Court. However, it is submitted by learned counsel for the applicant that sufficient time has elapsed after filing of the suit and in a case of eviction of a tenant, the suit is required to be adjudicated expeditiously. Keeping in view the aforesaid, while upholding the order of Lower Appellate Court and dismissing this revision, it is directed that the trial Court will expedite the hearing of the Civil suit and will conclude the hearing of the same within a period of six months from today. The non-applicant will not be allowed to seek unnecessary adjournment in the suit. The Civil Revision is accordingly dismissed with the aforesaid directions. There shall be no order as to costs.