CMA/1919/2000 of GHASI LAL Vs SMT PANCHI DEVI on 7 August 2026

Judgment

07/08/2026

1. Appellant was defendant No.2 in Civil Suit No.214/1995 titled as ‘Panchi Devi Versus Hanuman & Ors.’, which was decreed ex- parte against him, and in favour of respondent No.1-plaintiff vide judgment dated 23.09.1996. Thereafter, defendant No.2 filed an application on 15.11.1997 under Order IX Rule 13 CPC seeking to set aside ex-parte judgment and decree, whereupon District Judge, Jaipur District, Jaipur, permitted both parties to adduce

(2 of 20) [CMA-1919/2000] their evidence and then dismissed the application on merits vide order dated 16.10.2000. Feeling aggrieved by the order dated 16.10.2000, defendant No.2 has filed this Civil Miscellaneous Appeal under Order XLIII Rule 1(d) CPC.

2. At the very outset, it is desirable and necessary to take note of the factual matrix, in nutshell, as culled out from the record, that:- 2.1 Respondent No.1-plaintiff – Smt. Panchi Devi, filed a civil suit on 09.10.1995 stating inter-alia therein that the immovable property bearing Khasra No.171 measuring 0.77 hectare situated at Village Jagannathpura, Tehsil Sanganer, District Jaipur, comprising of a well, three residential rooms and one printing factory, as detailed out in Para No.1 of the plaint, was exclusive property of Late Shri Kalyan Baksh, deceased husband of the plaintiff, and after death of her husband, she alone became its absolute owner and possession-holder, being the only natural and surviving heir of deceased Shri Kalyan Baksh. 2.2 She pleaded therein that defendant No.1-Hanuman happens to be son of Narayan, elder brother of deceased Kalyan Baksh, who, taking benefit of old age and illiteracy of the plaintiff, got mutated the suit property in his name by falsely disclosing himself to be son of deceased Kalyan Baksh and thereafter, on the same date executed a sale deed dated 20.07.1991, selling out the suit property jointly in favour of defendants No.2 and 3. Defendant No.2 happens to be relative of defendant No.1 and defendant No.3 was his wife. 2.3 It was further pleaded by plaintiff that defendant No.1 had no authority to execute the sale deed of property of plaintiff and

(3 of 20) [CMA-1919/2000] therefore, defendants No.2 & 3 never acquired any right, title and interest in the suit property under the sale deed in question, hence, a prayer was made that sale deed dated 20.07.1991 be declared as null and void qua the ownership rights of plaintiff and defendants be directed to handover the possession of the suit property to plaintiff. 2.4 Learned District Judge, vide order dated 11.10.1995 issued summons of suit to defendants No.1, 2 and 3 returnable for the next date of 05.01.1996. 2.5 In pursuance thereof, summons were issued on 12.10.1995 to all the three defendants and were served by the Process Server of the Court, on 25.12.1995. 2.6 Summons of defendants No.1 and 3 were received by them in person respectively, but defendant No.2 refused to receive the summon, hence, Process Server served summon upon him by affixing a copy of the summon along with copy of the civil suit, on his residential house, in presence of two witnesses. 2.7 As per the report of Process Server on the summons, learned District Judge found the service of summons proper, but since no one put in appearance on behalf of defendants, therefore, ex- parte proceedings were drawn against all defendants, however, later on, defendant Nos.1 and 3, put in appearance through their Advocate and filed an application under Order IX Rule 7 CPC, which was allowed, but defendant No.2 did not turn up, hence, the suit was proceeded ex-parte against him. 2.8 Defendants No.1 and 3 submitted their independent and separate written statements, accepting the case of the plaintiff, therefore, learned District Judge decreed the civil suit in favour of

(4 of 20) [CMA-1919/2000] plaintiff vide judgment and decree dated 23.09.1996, which was passed ex-parte against defendant No.2. 2.9 After passing the judgment and decree dated 23.09.1996, respondent No.1-plaintiff filed execution petition on 29.09.1997 to take possession of the suit property. In the execution proceedings, warrant for possession was issued and in pursuance thereof, Court Nazir, with the aid of police assistance, broke out the locks and handed-over, the peaceful and vacant possession of the suit property to plaintiff-decree-holder on 05.11.1997. 2.10 Admittedly, since 05.11.1997, possession of suit property is continuing with respondent No.1-plaintiff-decree-holder, which is an admitted fact by the appellant-defendant No. 2 as well. 2.11 Thereafter, defendant No.2 filed the application under Order IX Rule 13 CPC on 15.11.1997 raising a plea of non-service of summon upon him and collusion between plaintiff and Process Server in effecting service of summon by way of affixing summon on the house of defendant No.2. The presence of two witnesses at spot is a manipulation and indeed Process Server never visited to his house on 25.12.1995, nor on that day defendant No.2 ever refused to receive summon, hence, prayer was made to set aside ex-parte decree against him on such grounds.

2.12. The application under Order IX Rule 13 CPC was replied by respondent No.1-plaintiff and the grounds raised by defendant No.2 were categorically denied.

2.13. Learned District Judge, considering the issue of service or non-service of summon and allegations of collusion and manipulation, which give rise to the disputed question of facts, permitted both parties to adduce their evidence and then

(5 of 20) [CMA-1919/2000] proceeded to decide the application under Order IX Rule 13 CPC, on merits.

2.14. From the side of defendant No.2, he alone appeared as AW- 1, although along with the application, affidavit of several other persons of his village and neighbours were placed on record but no one else appeared as witness. In rebuttal from the side of plaintiff, NAW-1 to NAW-5 stepped into witness box and deposed their statements. 2.15 Thereafter, learned District Judge, after hearing both sides and appreciation of pleading and evidence of both parties, recorded a finding of fact that there is no illegality in service of summon upon defendant No. 2 rather service upon defendant No.2 was effected in accordance with proceedings prescribed under Order V Rule 17 CPC. Learned District Judge noted that there is no sufficient evidence to prove allegation of collusion & manipulation, in effecting a false service upon defendant No.2, hence, declined to accept the plea of collusion or manipulation. Finally, the application under Order IX Rule 13 CPC was dismissed on merits vide Order dated 16.10.2000, hence, thereagainst, this Civil Misc. Appeal has been filed by defendant No.2. 3.1 Learned Senior Counsel appearing for and on behalf of defendant No.2 submits that the service of summon of present suit upon defendant No.2 was made by the plaintiff in collusion with the Process Server and two witnesses, who put their signatures on the report of the Process Server. 3.2 Learned Counsel submits that report of affixing the summon along with copy of the plaint on the house of defendant No.2, is false and indeed Process Server never visited to the village nor

(6 of 20) [CMA-1919/2000] came at house of defendant No.2 on 25.12.1995. The witnesses are relatives of plaintiff and not independent witnesses of that locality. 3.3 In addition, learned Senior Counsel submits that plaintiff – Panchi Devi also put her thumb impression on the summon, and this fact itself subscribes the factum of her collusion with Process Server. 3.4 Learned Senior Counsel also submits that the report of Process Server is silent on the point that who identified the house of defendant No.2. and on which part of house and at what time summon was pasted on the house of defendant No.2 on which part of house and at what time summon was pasted on the house of defendant no.2. 3.5 Substance of submission of learned Senior Counsel is that firstly, it is a case of illegality in effecting service of summon upon defendant No.2, and virtually it is a case of no service, however, alternatively, his submission is that rather this is a case of a collusive service of summon upon defendant No.2. 3.6 In addition to the above submissions, learned Senior Counsel for appellant pointed out that at the time of filing of the present Civil Suit on 11.10.1995, provision of Order V Rule 19-A CPC was available in the statute and according to this provision, it was necessary for the Court to send summons simultaneously by registered post but the Court did not adhere to this provision of law and therefore, on this count also, the order of the District Judge to accept the service of summon upon defendant No.2 proper, is defective.

(7 of 20) [CMA-1919/2000] 3.7 According to learned senior counsel, the service of defendant No.2 was not made in accordance with the requirement of statutory provisions, yet District Judge dismissed the application under Order IX Rule 13 CPC, which is not just, hence, the ex-parte judgment and decree dated 23.09.1996 qua defendant no.2 be set aside so also the order impugned dated 16.10.2000 passed by District Judge, Jaipur be quashed. 3.8 In support of his submission, learned Senior Counsel has placed reliance on the following case laws:-

(1) Abbu Bakar & Anr. Versus Deen Dayal & Anr.: (2006) 0 Supreme (Raj) 1906

(2) Bulganin Versus Apex Apartments Private Limited: (2001) 0 Supreme (Del) 460

(3) Lal Babu Singh @ Lal Babu & Ors. Versus Smt. Girija Devi & Ors.: (2015) 0 Supreme (Pat) 714

(4) Basant Singh & Anr. Versus Roman Catholic Mission: (2002) 0 Supreme (SC) 993/(2002) 7 Supreme 62 and

(5) Srei International Finance Ltd. Versus Fairgrowth Financial Services Ltd. & Anr.: (2005) 13 SCC 95. 4.1 Per contra; learned Senior Counsel, appearing for and on behalf of the plaintiff, submits that the service of summon upon defendant No.2 was made on his correct address where he resides and when Process Server went to serve summon, he met defendant no.2 in person in his house, but defendant no.2 refused to receive summon, hence, Process Server had to adopt the mode of service by way of affixing the summon, on the house of defendant No.2. The summon was pasted on the house of defendant No.2 in presence of two witnesses, therefore, service of

(8 of 20) [CMA-1919/2000] summon was properly done in accordance with the procedure prescribed under Order V Rule 17 CPC and there is no illegality therein. 4.2 His further submission is that house of defendant No.2 was identified by the Power of Attorney Holder of plaintiff (NAW-1), who has deposed in his statements, and both witnesses (NAW-2 & NAW-3) so also the Process Server (NAW-4) have also deposed their statements before the trial Court, which may not be disbelieved. 4.3 Learned Senior Counsel argued that in the cross-examination from these witnesses, defendant No.2 never put a case of collusion, or manipulation, therefore, plea raised on behalf of appellant-defendant No.2, that the service of summon was effected by way of collusion or manipulation, is baseless and no evidence was adduced to establish such allegation. 4.4 His further submission is that if the timing and place of pasting the summon was not mentioned in the report of the Process Server, same, at the most, is merely an irregularity and in the light of second proviso appended to Order IX Rule 13 CPC, ex- parte decree may not be set aside on the ground of irregularity in service of summon. 4.5 In respect of non-adherence to the provision of Order V Rule 19-A CPC, learned Senior Counsel appearing for respondent No.1- plaintiff submits that this provision was not mandatory in nature and once service of summon upon defendant No.2 has been effected in accordance with the procedure envisaged under Order V Rule 17 CPC and such service was found proper by the District

(9 of 20) [CMA-1919/2000] Judge, issuance of summon by registered post was not required at all. 4.6 Submission of learned Senior Counsel is that the District Judge in the order impugned dated 16.10.2000 has considered each and every point extensively and then dismissed the application under Order IX Rule 13 CPC on merits. The order impugned does not suffer from any vice of arbitrariness, manifest illegality and perversity much less of jurisdictional error, hence, the same is not required to be interfered with by the appellate Court and this appeal deserves to be dismissed. 4.7 In support of his submissions, learned Senior Counsel for respondent-plaintiff has referred and relied upon the judgment of the Hon’ble Supreme Court delivered in case of Parimal Versus Veena @ Bharti: (2011) 3 SCC 545.

5. Heard learned Senior Counsels for both the parties at length and thoroughly scanned the record of Trial Court.

6. At the outset, it is relevant to consider the remedies as were available in law to appellant-defendant No.2 against the judgment and decree dated 23.09.1996 passed ex-parte against him though it was passed bi-parte against defendants No.1 & 3. As per legal proposition, Defendant No.2 had two parallel legal remedies; (i) in order to challenge ex-parte judgment and decree dated 23.09.1996 on merits, defendant No.2 could have filed Civil Regular First Appeal under Section 96 CPC thereagainst and (ii) simultaneously, if defendant No.2 was aggrieved by illegality in service of summon or collusive service of summon upon him, to get set aside ex-parte decree on such grounds, he could have filed an application under Order IX Rule 13 CPC. Thus, two parallel

(10 of 20) [CMA-1919/2000] legal remedies against ex-parte decree were available to defendant No.2. The only caveat is that if Civil Regular First Appeal against the ex-parte judgment and decree is dismissed on merits or disposed of on any ground other than withdrawal of appeal, in that eventuality, application under Order IX Rule 13 CPC shall not lie.

7. It is well established that the scope of Regular First Appeal under Section 96 CPC and of the application under Order IX Rule 13 CPC is not overlapping and can be exercised on different issues. This position has been clarified by the Hon’ble Supreme Court in case of Bhanu Kumar Jain Versus Archana Kumar & Anr.: (2005) 1 SCC 787. In Para 25 of the judgment, Hon’ble Supreme Court held and observed as under:-

25. In an application under Order 9 Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. In Para 28, Hon’ble Supreme Court has also held and observed as under:-

28. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions. (emphasis supplied) The Hon’ble Supreme Court further observed in this judgment that a right to question the correctness of the decree in the First Appeal is statutory right and such right cannot be curtailed unless the statute expressly or by necessary implication say so. In respect of scope of Order IX Rule 13 CPC, Hon’ble

(11 of 20) [CMA-1919/2000] Supreme Court observed that if the application of defendant is dismissed, defendant can avail the remedy of filing Appeal thereagainst in terms of Order XLIII Rule 1 CPC, but once, such an appeal is dismissed, the defendant cannot raise the same issue in the Regular First Appeal, if filed to challenge the ex-parte judgment and decree on merits because it may lead to conflicting decisions, which is not contemplated in law. Further, it was also made clear that “the dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex-parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiff were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal.”

8. The proposition of law expounded by the Supreme Court in case of Bhanu Kumar Jain (supra), has been subscribed again in a subsequent judgment delivered in case of Mahesh Yadav & Anr. Versus Rajeshwar Singh & Ors.: (2009) 2 SCC 205.

9. The purpose of taking note of the above proposition of law is that defendant No.2 despite having two parallel remedies to set aside the ex-parte judgment and decree dated 23.09.1996, opted only the remedy of filing application under Order IX Rule 13 CPC and did not avail remedy of filing Regular First Appeal. In the

(12 of 20) [CMA-1919/2000] application under Order IX Rule 13 CPC, scope is confined to the issue of service or non-service of summon or illegality in service of summon or a collusive service of summon upon him, whatsoever may be, but not to consider the ex-parte judgment on the touch stone of merits or collusiveness. The prayer of defendant No.2 in the application under Order IX Rule 13 CPC, seeking to set aside the ex-parte judgment and decree dated 23.09.1996, is based on only the issues of service or non-service of summons and not on merits of the ex-parte judgment. If defendant No.2 had filed Civil First appeal against ex-parte judgment and decree, merits of the judgment or collusion between parties would have been considered therein.

10. In the order impugned also, District Judge considered the issue of service or non-service of summons upon defendant no.2, hence, in the present appeal, thereagainst, issue for consideration centers around that issue only.

11. Nonetheless, it is noteworthy here that the sale deed in question dated 20.07.1991 was executed by defendant No.1 jointly in favour of defendants No.2 and 3, wherein defendant No.3 is co-purchaser of the suit property along with defendant No.2. Defendant No.2 too admits that defendant No.3 was co- sharer of the property in question of half share. Defendant No.3, admittedly has not questioned the judgment and decree passed in favour of respondent No.1-plaintiff.

12. In respect of the issue of service or non-service of summons of suit upon defendant No.2, this Court finds that it is not the case of defendant No.2 that the address of his residential house was incorrectly mentioned in the summon or summon was served by

(13 of 20) [CMA-1919/2000] Process Server on a wrong address or on the date of affixing the summon i.e. on 25.12.1995, he was not available in the house. Rather, defendant No.2, in his statements (AW-1), clearly admits that on 25.12.1995, he was present in his house as on that day, it was birthday party of his son at his house.

13. This Court further finds that burden to prove the pleas of collusion or manipulation by plaintiff with the Process Server, to effect service of summon by way of affixing on the house of defendant No.2 and that the Process Server never visited to his house on 25.12.1995 lies upon defendant No.2. He has not produced any cogent and convincing evidence on record, except his own statements as AW-1. There is no other corroborative evidence to prove the allegation of collusion. Merely based on the sole statements of defendant no.2, such a plea can-not be presumed to be proved, more so when, on the contrary, Process Server and both witnesses have rebutted the statements of defendant No.2. No presumption of biasness or collusion of plaintiff with the Process Server, can be drawn, when the direct evidence to rebut such presumption is available on record. The statements of Process Server, who is a dis-interested person of Court cannot be disbelieved for no good reason, more so when his evidence stands further corroborated by the two other witnesses NAW-2 & NAW-3. The statements of Process Server and two witnesses are more weighty and reliable than the statements of defendant no.2, who is obviously an interested and biased witness being a party to the litigation. There is no reason to disbelieve the statements of Process Server, who has proved his report and reason of affixing summon. In the cross-examination of Process

(14 of 20) [CMA-1919/2000] Server (NAW-4) and in one cross-examination from two witnesses NAW-2 & NAW-3, no question in respect of the allegation of collusion was asked form the side of defendant No.2. Identification of house of defendant No.2 was made by Power of Attorney of plaintiff. Non-mentioning of timing and place of affixing the summon can be considered, at the most, an irregularities but not an illegality in service. Thumb impression of plaintiff on the summon, itself does not lead to any adverse inference against plaintiff.

14. As far as non-adherence to the provision of Order V Rule 19A is concerned, same may not be considered as mandatory, because as per Clause (2) of this provision, it was within the jurisdiction of Court to dispense with the service by registered post. It is noteworthy that this provision has been deleted from statute w.e.f. 01.07.2002.

15. On the appreciation of entire evidence and other attending facts & circumstances, this Court is of opinion that the learned District Judge, in the impugned order dated 16.10.2000, has rightly observed that the service of summons upon defendant No.2 was properly served in accordance with the procedure prescribed under Order V Rule 17 CPC, which is obviously an acceptable and permissible mode of service in law. The order impugned is a well considered and reasoned order. The findings recorded by the District Judge are based on evidence on record and run within province of legal proposition. Hence, in the opinion of this Court, impugned order does not warrant interference of this Court in exercise of its appellate jurisdiction.

(15 of 20) [CMA-1919/2000]

16. This Court finds support from the judgment of the Coordinate Bench passed by the Rajasthan High Court in case of Om Prakash Vs. Lala, reported in 1995 Supreme(Raj) 895. In this case, the Court observed that when appellant-defendant refused to accept summons, then summons were pasted on the outer gate of his house in presence of two witnesses and the service of summons effected in this manner was held to be a proper service. The ex-parte decree was declined to be set aside and the appeal filed thereagainst by defendant was too dismissed. In an another decision passed by the Coordinate Bench of the Rajasthan High Court in case of Dr. Gan Nath Vs. Chiman Lal, reported in 1980 RLW(Raj) 239, while placing reliance on the second proviso, appended to the Order IX Rule 13 CPC, it was held that ex-parte decree cannot be set aside merely on the ground of irregularity in service of summons, if the Court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. In the present case, summons upon defendant No.2 were affixed on 25.12.1995 on the correct address of his residential house, where he was present on that day. The next date for appearance of defendant No.2 before the Trial Court was fixed for 05.01.1996 as indicated in summon specifically. The summons were pasted on the residential house of defendant No.2 in his presence and in presence of two witnesses, when defendant No.2 refused to receive summons. Thus, defendant No.2 had knowledge of the date of hearing in the suit so also had sufficient time to appear before the Trial Court. In this view, learned District Judge committed no error in passing the order dated 16.10.2000, dismissing application under Order IX

(16 of 20) [CMA-1919/2000] Rule 13 CPC and declining to set aside the ex-parte decree against defendant No.2.

17. The Hon'ble Supreme Court in case of Parimal (supra) has also affirmed the proposition of law in respect of setting aside ex- parte decree against the defendant within scope of Order IX Rule 13 CPC. For ready reference Para No.12 of the judgment is being reproduced hereunder: "12. 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." On the strength of this judgment, impugned order is just and therefore does not warrant any interference.

18. The case laws which have been referred and relied upon on behalf of the appellant-defendant No.2 do not provide any strength to his case. 18.1 In the case of Abbu Bakar (supra), the issue before Court was of substituted service of summon, made by way of publication of notice in the newspaper, which was held to be improper due to not following the procedure to effect service of notice in person, hence, the ex-parte decree was set aside, but in the present appeal, service of summon upon defendant No.2 was not effected by way of paper publication. 18.2 In case of Bulganin (supra), plaintiff got served the summons upon defendant by way of dasti, without the authority

(17 of 20) [CMA-1919/2000] or direction of the Court and therefore, the Court observed that where a party accompanies the Process Server, there is always scope of harbouring suspicion that the service report may have been managed. In the present case, plaintiff was present at the site only to identify the house of defendant No.2 and the plea of collusion or manipulation by plaintiff with Process Server has not been established by defendant No.2, rather on the contrary, Process Server and both witnesses have deposed on oath in their statements before the Court to prove the refusal to receive summon by defendant No.2 and the factum of pasting the summon on outer portion of his house. Admittedly, address of house of defendant No.2 is correct and defendant No.2 (AW-1) admits his personal presence in his house on the date of effecting service i.e. 25.12.1995. Therefore, no presumption of harbouring suspicion to manage the service can be drawn where the direct evidence has come on record. Hence, this judgment does not support the case of appellant. 18.3 In case of Lal Babu Singh @ Lal Babu (supra), summons upon defendants were served on refusal, then direction was given by Trial Court to plaintiff to file affidavit. Thereafter, on filing application by plaintiff under Order V Rule 20, summons of defendants were allowed to be served through Gazette/paper publication and then the service was held proper and Trial Court proceeded ex-parte against defendants. In that context, the High Court of Patna observed that since the summons on defendants under Order V Rule 19-A were not issued, hence, the ex-parte decree was set aside. In the present appeal, facts are entirely different as the service of summon upon defendant has been

(18 of 20) [CMA-1919/2000] effected by way of affixing the summons on the house of defendant No.2. This mode of service is permissible in law and has also been proved by the plaintiff through evidence, therefore, learned District Judge in the order impugned has rightly observed that the non-adherence for issuing summons by registered post under Order V Rule 19-A is not fatal. It appears that learned District Judge in its discretion and considering the service of summons upon defendant No.2 proper, did not think it proper to issue the notice by registered post, hence, this Court does not find any reason to interfere with such discretion exercised by the District Judge. 18.4 In case of Basant Singh (supra), the issue under consideration before the Hon’ble Supreme Court was in respect of drawing a presumption of service of summons, which were sent by registered post under Order V Rule 19-A. This judgment does not render any support to appellant for the issue involved herein. 18.5 In case of Srei International Finance Ltd. (supra), the Hon’ble Supreme Court while considering the sufficient cause of non-appearance of defendant, observed and held that litigant should not to be denied hearing unless something akin to gross negligence or misconduct, in contesting the proceedings, is made out. In that case, defendant was a company and after due service of summons, it was admitted case of defendant-company that instructions to the Solicitor to put in appearance before the Court in the civil suit were given, but due to miscommunication, default occurred in putting appearance. In that backdrop, the Hon’ble Supreme Court observed that a liberal view ought to have been

(19 of 20) [CMA-1919/2000] taken by the Trial Court while construing the meaning of “sufficient reason”. In the considered opinion of this Court, there cannot be any quarrel about the proposition of law laid down by Hon’ble Supreme Court in the present judgment, but in the appeal at hand, the issue is not about the sufficient cause for non- appearance, but issue is in respect of considering the fact that service of summons upon defendant No.2 was proper or not. Therefore, this judgment doe not apply in the present appeal.

19. Apart from considering the present appeal on merits, this Court also deems it just and proper to deal with the issue of equity and justice. It is trite law that the Court also has a duty to prevent injustice to any of the parties to the litigation and the jurisdiction by the Court should not be exercised in the manner which permits any proceedings of Court to be used as a substantial injustice. On this point, it is an admitted position on record that the respondent-plaintiff got possession of the suit property in execution proceedings on 05.11.1997 and since then, plaintiff is in lawful possession and appellant-defendant No.2 did not have possession of the suit property. As has already been discussed hereinabove, that appellant-defendant No.2 did not opt to challenge the ex-parte decree dated 23.09.1996 on merits and did not file Regular Civil First Appeal thereagainst. The issue, which was raised by defendant No.2 in the application under Order IX Rule 13 CPC, has been adjudicated on merits against him and it has been found that the service of summon of suit upon defendant No.2 was properly served. Thus, defendant No.2, obviously had knowledge of the date of hearing of the suit and sufficient time to

(20 of 20) [CMA-1919/2000] put in appearance before the Trial Court. Present lis is pending between the parties since 1995 and now near about a period of more than 30 years have been passed. In the opinion of this Court, in totality of facts, equity tilts in favour of plaintiff-decree holder and not in favour of appellant-defendant No.2. In case, ex- parte decree is set aside on the ground of equity, it is the plaintiff who would suffer more than defendant No.2 for none of his fault. Therefore, this Court is of opinion that merely on the ground of equity, interference by this Court in the order impugned is not justified.

20. The net outcome of discussion and enunciation made hereinabove is that the present appeal deserves to be dismissed and is hereby dismissed. No costs.

21. All pending application(s), if any, stand(s) disposed of.

22. Record of the trial Court be sent back. (SUDESH BANSAL),J 69-S/SUNIL SOLANKI/RONAK JAIMAN