SUPREME COURT OF INDIA

Before:- D.P. Mohapatra and P. Venkatarama Reddi, JJ.

Civil Appeal No. 7774 of 2001 (arising out of SLP (C) No. 2935 of 2001). D/d. 7.11.2001.

Surinder Kumar - Appellant

Versus

Harbhajan Singh - Respondent

Civil Procedure Code, 1908 Sections 151, 9, Rule 13 - Revisional jurisdiction - Ex parte order - Set aside by appellant authority on account of non service of summons - No discussion of any material on record on the basis of which the High court held that the application filed under Order 9 Rule 13 Civil Procedure Code was actuated by mala fide intention - Order of High Court set aside.

[Paras 6 and 7]

JUDGMENT

Heard learned counsel for the parties.

2. Leave granted.

3. The order passed by the appellate Court allowing the appellant's application for setting aside the ex parte decree under Orde 9, Rule 13, C.P.C. having been set aside by the High Court in exercise of its revisional jurisdiction, the defendant has filed this appeal assailing the said order.

4. The respondent filed the suit in the year 1993 seeking specific performance of the contract of sale of the property (shop). In the suit, the appellant was set ex parte in 1994 and the ex parte decree decreeing the suit was passed on 22-4-1995. The appellant coming to know of the ex parte decree on 22-8-1995 filed an application under Order 9, Rule 13 of the Civil Procedure Code on 26-8-1995, alleging, inter alia, that he was neither aware of filing of the suit nor was he served with any summons in the suit before the ex parte decree was passed by the trial Court. The allegations were refuted by the respondent. An objection was raised that the application filed under Order 9, Rulde 13, C.P.C. was barred by limitation. Both parties led evidence in support of their contentions.

5. Learned trial Court, on consideration of the matter, dismissed the application filed under Order 9, Rule 13, C.P.C. On appeal filed by present appellant, the appellate Court on a detailed discussion of the evidence on record, set aside the order passed by the trial Court, allowed the application filed under Order 9, Rule 13, C.P.C. and set aside the ex parte decree passed by the trial Court. In the Civil Revision filed by the respondent herein, the High Court, as noted earlier, reversed the order of the appellate Court and restored that of the trial Court. Hence the grievance of the appellant.

6. We have perused the order passed by the appellate Court and the order of the High Court. We find that the High Court has shifted the evidence relating to the case of non-service of summons in the suit pleaded by the appellant and on appreciation of the evidence passed the order setting aside the order passed by the appellate Court. The operative portion of the High Court order reads thus :

"In fact, the application under Order 9, Rule 13, C.P.C. is actuated by mala fide intention. It has been filed to frustrate the cause of the plaintiff and drag the proceedings. It is nothing else but an abuse of the process of the Court. This revision petition is, therefore, allowed.

Resultantly, application under Order 9, Rule 13, C.P.C. stands dismissed"

7. There is no discussion of any material on record on the basis of which the High Court held that the application filed under Order 9, Rule 13, C.P.C. was actuated by mala fide intention. It is relevant to note here that the appellate Court on detailed discussion of the evidence on record had accepted the case of non-service of summons on the finding that while the appellant was residing at Bombay attempts were made to serve at the address at Amritsar which, as expected, did not succeed. Even the attempted service at the address in Bombay proved unsuccessful for want of proper identification of the addressee. The paper publication purported to have been made was also unsuccessful. The High Court without considering the findings recorded by the appellate Court, which is the final Court of fact, set aside the order in exercise of its revisional jurisdiction. Further, all that the appellate Court had done was to give an opportunity to the defendant to contest the case, if so advised. On the facts and circumstances of the case, the High Court should not have interfered with the order of the trial Court in exercise of its revisional jurisdiction. On consideration of the matter, we are of the view, that the judgment/order passed by the High Court is unsustainable and should be set aside.

8. Accordingly, the appeal is allowed. The order of High Court is set aside and the order passed by the appellate Court is restored. The trial Court is directed to dispose of the suit, in accordance with law, expeditiously within a period of six months from the date of the receipt of the copy of this order. There shall be no order as to costs.

Appeal allowed.