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Shri Jamadar Singh v. Shrimati Vidyawati - WRIT - C No. 16865 of 2006 [2006] RD-AH 6800 (28 March 2006)


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Court No.9

Civil Misc. Writ Petition No.16865 of 2006

Shri Jamadar Singh



Shrimati Vidyawati


Hon. Sunil Ambwani, J.

Heard Shri Vinod Kumar Agarwal, learned counsel for the plaintiff-petitioner.  

The suit for specific performance of contract filed by the petitioner against Smt. Vidyawati the private respondent being original suit No.375 of 1989 was decreed exparte on 16.8.1990.    It is  alleged that the plaintiff deposited the balance sale consideration of Rs.24,000/- and got the sale deed executed in execution proceedings through Court and has entered into possession.   The defendant made an application on 31.5.2000 (after ten years) stating that she had no knowledge of the proceedings in suit and the decree.   She did not refuse to accept the summons of both the suit and the execution proceedings.   The Trial Court rejected the application filed  under Order 9 Rule 13 CPC on the ground that  she was served in the suit as well as the execution proceedings.    In suit the service could not be affected by summons and registered post and thus the Court effected substituted service by publishing the notices in newspaper ''Dainik Om Darshan'.    In execution proceedings she was served with the summons by refusal.  The restoration application was rejected on 19.12.2003.  Aggrieved the defendant filed appeal No. 99 of 2003, which has been allowed by judgment and order dated 23.2.2006.  Hence this writ petition.

The Appellate Court believed the assertion of the defendant that she has no knowledge of the proceedings at all.  The summons were not served upon her.   The suit was initially filed as Misc. case No.37 of 1985 on 5.4.1989, as the Court fees was not paid.  On payment of Court fees on 19.9.1989, the suit was registered as original suit No.375 of 1989 and summons were sent on 14.11.1989 for 21.11.1989.  There were holidays on account of election between 21.11.1989 and 26.11.1989 and that on the next date on 27.11.1989 the plaintiff was required to affect fresh service in seven days.   Date was fixed for issues and  for taking steps to serve summons.     The plaintiff did not take fresh steps,  and instead made application on 8.1.1990 for substituted service, which was allowed on the same day and the notices   were published in daily newspaper ''Dainik Om Darshan', which has no circulation at all and the suit was decreed ex-parte, without taking evidence only on the basis of an affidavit.    There is nothing in the judgment to show that the summons were refused or that the substituted service was found to be sufficient.   Infact there was no question of substituted service as the plaintiff had failed to take the steps on second occasion.

The Appellate Court found that the refusal to accept the registered post envelope cannot be treated to attribute knowledge of the proceedings of the suit and the decree.    The defendant made an averment that on 28.5.2000 when the plaintiff and the amin came to her house for taking possession, she made an application on 29.5.2000 for inspection of record and only then she found out that exparte decree was passed on 16.8.1990.

The Appellate Court has held, after perusal of the  record that the defendant was not served either with the summons of the suit and had not refused the registered post envelope in execution proceedings and thus her application was within time from the date of her knowledge.

The Court leans in favour of contested judgments and not  exparte orders, which are obtained by playing sharp practice.   The plaintiff instead of taking fresh steps for service, in pursuance of orders  dated 2.1.1990,  made an application within eight days for substituted service in newspapers and published the summons in a newspaper, which did not have any circulation in the District at all.    There are large number of such newspapers which have mushroomed  all over the State and in publishing summons of the Court.   The service of summons in any newspapers cannot be treated to be sufficient unless it has a wide circulation in the area.   In any case I do not find any error of fact or failure of justice in the order of the Appellate Court in setting aside the exparte decree and directing the parties to contest the suit for specific performance of contract.

The plaintiff-petitioner has not been prejudiced by the order.  In case he has a good case, he may succeed after contest. The writ petition is accordingly dismissed.



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