Negligent Conduct, Caused 19-Yr Delay: Rajasthan High Court Dismisses Plea Against Ex-Parte Decree In Recovery Suit Due To Non-Appearance

Noting the "negligent conduct" of a man in delaying the trial of a recovery suit by almost 19 years, the Rajasthan High Court recently dismissed his plea for setting aside an ex-parte decree which was passed due to his non-appearance in the suit.

A single judge bench of Justice Nupur Bhati observed, "Thus, upon perusal of the record, and the findings of the learned Trial Court, it is clear that the conduct of the defendant has been negligent and causing delay and the entire factual incident at least makes it clear that he has been delaying the case repeatedly and the original suit has been delayed for almost 19 years".

Background

The decision came in the appeal filed by one Sajwar Khan (appellant), in a suit for recovery wherein Khan had taken a loan from Gaje Singh (respondent) and had issued a promissory note.

Pursuant to two unsuccessful attempts to issue summons to the Khan, Singh filed an application for substituting service–by publishing summons in the newspaper.

It was stated that pursuant to non-appearance of the appellant, even after summons were published in the newspaper, an ex-parte decree was passed by the Trial Court in 2005.

Thereafter in 2011, Khan moved an application seeking setting aside of the ex-parte decree along with an application for condonation of delay in filing the application. These were dismissed by the District Judge in 2016 pursuant to which Khan approached the high court.

Contentions

Before the high court, Khan's counsel argued that the substituted service of summons had to be done as per with Order 5, Rule 20(1A) CPC which states that such summons have to be published in a "daily newspaper circulating in the locality" in which Khan was "last known to be residing".

It was contended that despite being aware of Khan's change in address from Nagaur to Ajmer, the respondents published the summons in the newspapers of Nagaur and hence, this could not be termed as service of summons upon the appellant.

On the other hand, Singh's counsel argued that though the change of place of residence was in Singh's knowledge, however Khan's "actual address" was not known to the respondents. It was contended that Khan despite being present before the Trial Court–after his change of residence as stated by him–did not provide the "correct address at which he was then residing in Ajmer".

Non-service of summons argument an 'afterthought'

The High Court, after perusing the material on record, agreed with the arguments and facts stated by the respondent that they were not aware of Khan's actual address in Ajmer and that Khan had not informed about such change in address to the court despite appearing in the court after such change. Hence, the summons were served when they were published in the newspaper of the place where Khan was known to be last residing i.e. Nagaur.

Justice Bhati rejected Khan's contention that service of summons were not as per the CPC as he was not residing in Nagaur, terming it "devoid of merit since this merely appears as an afterthought".

The high court made the observation after noting that Khan's application moved in 2011 (for setting aside 2005 ex parte order) bore the address of 'Village Karakwal, Merta' (which is in Nagaur) and not the new registered address of Ajmer, as he had claimed in his pleadings.

The high court further observed that when the summons were served to Khan in 2010 for execution of the decree, he had "refused to accept it".

Justice Bhati thereafter said, "Thus, it is was rightly observed by the learned Trial Court from the said report that even on 01.10.2010, this decision was clearly and definitely known to the defendant (Khan) and even then within 30 days, the application has not been presented and though reason for delay was stated in the application, however the same was not appropriate and sufficient".

The high court thus, dismissed Khan's plea.

Title: Sajwar Khan v Gaje Singh

Citation: 2024 LiveLaw (Raj) 192

Click Here To Read/Download Order