Dismissed

Surendra Kumar Gupta v. Kailash Chandra Singhal

Allahabad HC18 Dec 2018SCCR/151/2018

Case brief

AI extract

What is this about?

In a revision against an order rejecting an application to set aside an ex parte decree, the court held that the trial court correctly found the defendant was duly served, as indicated by an endorsement on the summons. The revisionist failed to discharge his burden to prove forgery and reasoned that the appeal was dismissed for lack of merit.

What did the court decide?

The revision petition was dismissed, upholding the order setting aside the application to set aside the ex parte decree.

Surendra Kumar Gupta Vs Kailash Chandra Singhal — Execution and Attachment | Allahabad HC (2018)

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Court No. - 19

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Case :- S.C.C. REVISION No. - 151 of 2018

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Revisionist :- Surendra Kumar Gupta Opposite Party :- Kailash Chandra Singhal Counsel for Revisionist :- Vageesh Pandey,Sudhanshu Pandey Counsel for Opposite Party :- Prateek Kumar

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Hon'ble Manoj Kumar Gupta,J.

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The instant revision is directed against an order dated 6.10.2018 passed by the Court of Small Causes in Misc. Case No.359 of 2017 rejecting the application filed by the revisionist under Order 9 Rule 13 CPC, wherein the prayer made was for setting aside the exparte decree dated 31.8.2017 in SCC Suit No.2 of 2017. The trial court has recorded a specific finding that summons in the suit were personally served upon the revisionist-tenant but he did not appear to contest the proceedings. He had also failed to offer any valid explanation for his non-appearance.

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Learned counsel for the revisionist submitted that the revisionist had specifically denied his signatures over the summons but the court below failed to record any specific finding in that regard.

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On the other hand, learned counsel for the the plaintiff-respondent submitted that there was no specific denial regarding service of summon upon defendant-tenant in application filed by him under Order 9 Rule 13 CPC. It is submitted that the finding recorded by the court below is finding of fact and does not require any interference in exercise of revisional power.

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I have considered the submission made by learned counsel for the parties and perused the material on record. The summon which was sent to the revisionist, has been brought on record as Annexure 5. The back side of the summon bears an endorsement by the process server that it was duly

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received by Surendra Kumar. It also bears signature of Surendra Kumar advocate and an endorsement that it was received by him at 10-30 a.m. on 23.7.2017. It is not disputed that the revisionist also writes his name in short as Surendra Kumar, as has also been mentioned by him on the application dated 27.9.2017 under Order 9 Rule 13 CPC. The restoration application contains only a very vague assertion to the effect that plaintiffopposite party succeeded in obtaining an exparte decree surreptitiously without the revisionist coming to know of the proceedings. It does not specifically states that the signatures over the summons were not that of the revisionist. The revisionist tried to improve upon his case by filing an affidavit and in paragraph 4 whereof, it is stated thus :-

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"That I, with my whole consciousness, specifically deny to hold any signatures on any of the delivery slip of notice/summons received on my name in reference to abovesaid case no.359/2017."

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Even the above assertion is wholly vague. It does not specifically state that signatures over summon though purports to be that of the revisionist, was infact not his signature or that it bears his forged signature. Moreover, after having taken a plea that the delivery slip does not contain his signature, it was the burden of the revisionist to lead positive evidence to prove that the summon does not bear his signature like, producing report of handwriting expert comparing signature on the summon with his admitted signatures. In such view of the matter, this Court does not find any illegality in the finding recorded by the court below that the revisionist was sufficiently served, but he failed to contest the proceedings leading to passing of exparte decree.

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A feeble attempt was made by counsel for the revisionist to challenge the service by contending that the summon did not disclose the date fixed in the suit for appearance. However, the argument is devoid of any force.

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Firstly, no such plea was raised by the revisionist before the court below and second, a perusal of summons indicate that the date fixed was mentioned on top of the summon and according to which the next date was 4.4.2017 whereas the summon was served upon the revisionist on 27.3.2017, thus leaving sufficient time to put in appearance and contest the proceedings.

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In view of foregoing discussion, this Court does not find any illegality in the impugned order to warrant interference in exercise of revisional jurisdiction.

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The revision lacks merit and is dismissed.

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Order Date :- 18.12.2018

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skv

Surendra Kumar Gupta v. Kailash Chandra Singhal

Case brief

What is this about?

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Surendra Kumar Gupta v. Kailash Chandra Singhal

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