Kalptaru Towers Akurli Road, Kandiwali, East Mumbai v. Smt. Rabiya Rehmani W/o Abdul Mujeeb Rehmani, R/o

1/3. Ms. Sushila Alias Lali Bai (Physically Handicapped) D/o Late Vimal Chand Lodha, Address Of All Sons And Daughter Of Late Vimal Chand Lodha- Firm Mishrilal Vimal Chand Lodha, H.u.f. Pali Bazar, Beawar. 1/4. Smt. Anita Sancheti Alias Vittu D/o Late Vimal Chand Lodha And Wife Of Shri Rakesh Sancheti, R/o A-93, Kalptaru Towers Akurli Road, Kandiwali, East Mumbai-

400101. Versus ----Petitioners

1. Smt. Rabiya Rehmani W/o Abdul Mujeeb Rehmani, R/o Chhavani, Beawar (Since Deceased) Through Her Legal Representatives- 1/1. Abdul Mujeeb Rehmani S/o Abdul Habeeb Rehmani, R/o 36, Bairwa Basti Ward No. 03, Chhavani, Beawar, District Ajmer. 1/2. Rafiya D/o Abdul Mujeeb Rehmani, R/o 36, Bairwa Basti Ward No. 03, Chhavani, Beawar, District Ajmer. 1/3. Sabiha D/o Abdul Mujeeb Rehmani, R/o 36, Bairwa Basti Ward No. 03, Chhavani, Beawar, District Ajmer. 1/4. Abdul Museeb Rehmani S/o Abdul Mujeeb Rehmani, R/o 36, Bairwa Basti Ward No. 03, Chhavani, Beawar, District Ajmer. ----Respondents [2025:RJ-JP:22956] (2 of 6) [CR-127/2022] For Petitioner(s) : Mr. Rahul Singh Meratwal for Mr. Ashvin Garg For Respondent(s) : Mr. Rakesh Kumar Sharma HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 28/05/2025 Order

1. Instant revision petition is preferred by petitioners plaintiff aggrieved from order dated 19.05.2022 in civil misc. case no. 84/2017 (67/2003) passed by learned Additional Civil Judge no.2, Beawar, District Ajmer whereby an application under Order IX Rule 13 read with Section 151 CPC filed by respondents defendant was allowed and ex-parte judgment and decree dated 24.04.2002 and ex-parte proceeding dated 08.10.2001 in civil suit no. 105/2001 set aside at a cost of ₹200/-.

2. Learned counsel for petitioners while relying upon grounds of revision petition submitted that a civil suit no. 105/2001 was filed by plaintiff before learned Civil Judge for eviction and recovery of rent but defendant Rabiya Rehmani (since deceased) remained absent despite sufficient service of notice and in absence of participation the trial court has passed an ex-parte decree on

24.04.2002. He further submitted that the notice was served in accordance with provision under Order V of CPC while taking all precautions as provided therein but the trial court on an application under Order IX Rule 13 CPC filed at belated stage has set aside the judgment and decree on the ground that the defendant was not served a proper notice before passing the decree. He further submitted that an application under Order IX [2025:RJ-JP:22956] (3 of 6) [CR-127/2022] Rule 13 CPC was filed in the year 2003 decided in 2022 and in the meanwhile, an appeal was also preferred by defendant but same was withdrawn. He further submitted that there was a deliberate delay on part of respondent defendant in participation in the proceedings. He also submitted that despite opportunity to lead evidence the respondent defendant have failed to lead evidence in support of applicationunder Order IX Rule 13 of CPC and he has failed to prove that the notice was not served upon her. At last, he submitted that the plaintiff is waiting for last 23 years with eviction decree but same was delayed by one or the other reason.

3. Aforesaid contentions were opposed by learned counsel for respondent defendant and he submitted that the civil suit is filed in the year 2002 and the decree was obtained without service of notice upon respondent defendant (since deceased). He further submitted that the respondent has an option either to challenge the ex-parte decree by filing an appeal or apply for setting aside of ex-parte decree under Order IX of CPC. He further submitted that the appeal was not decided on merits and same was dismissed as withdrawn and same is not a bar to pursue remedy under Order IX Rule 13 CPC. He also submitted that when the facts are available on record and proved from court record, then, the respondent is not required to lead any evidence. He submitted that due to any technical reason the respondents cannot be thrown out of the Court without ventillating their grievances. He further referred judgment in case of Kewal Ram Vs. Smt. Lubhai and Ors. (1987) 2 SCC 344 and Reena Sadh Vs. Anjana Enterprises AIR 2008 SC 2054 and submitted that [2025:RJ-JP:22956] (4 of 6) [CR-127/2022] non-service of notice is sufficient to set aside an ex-parte decree passed against the respondent defendant.

4. Heard learned counsel for parties and perused the judgment as referred by learned counsel for respondent(s).

5. The facts giving rise to instant revision petition are that a civil suit no. 105/2001 was filed by Vimal Chand Lodha, Manager of HUF Mishri Lal Vimal Chand Lodha against Rabiya Rehmani for eviction of suit property along with recovery of rent. Learned Civil Judge (Junior Division) has issued a notice to defendant and non- appearance after service of notice the plaint was allowed on

24.04.2002 and the decree was passed in favour of plaintiff. Aggrieved from the judgment and decree an application under Order IX Rule 13 read with Section 151 CPC, was filed. During pendency of this application, Rabiya Rehmani and Vimal Chand Lodha have expired and their legal heirs were substituted. The application was allowed on 19.05.2022 and the decree was set aside.

6. A perusal of record indicate that by ordinary process notice was sent to defendant Rabiya and the trial court has noticed that the defendant herself received the notice so on sufficient service directed to proceed ex-parte on 08.10.2001, which later resulted in decree of suit. A perusal of report on summon issued by the trial court on 03.09.2001 for next date 08.10.2001 clearly indicate that defendant Rabiya Rehmani (since dead) has refused to accept notice. The process server has also reported that no one has acknowledged refusal to accept notice, therefore, the notice was returned to the Court after signature of process server and verification. It appears that the trial court without reading the [2025:RJ-JP:22956] (5 of 6) [CR-127/2022] report dated 05.10.2001 has proceeded ex-parte against the defendant Rabiya Rehmani on 08.10.2001 the basis of this ex- parte proceeding an ex-parte decree was passed on 24.04.2002.

7. There is no other material to show that the defendant was ever served other than the summon as referred hereinabove. The record indicate that the summons were issued only once and same was returned as unserved, thus, there is no service upon defendant before passing a decree.

8. A copy of notice was not sent additionally through registered post to defendant which also indicate that the trial court has not taken due care for service of notice upon defendant. It is the duty of the trial court to comply service of notice in accordance with Order V CPC.

9. In case of Kewal Ram Vs. Smt. Lubhai (supra), Hon’ble Supreme Court while considering a situation where no notice was served as directed for setting aside of ex-parte decree under the Rule 13 of Order IX CPC. Similarly, in case of Reena Sadh (supra), an ex-parte decree was set aside, wherein also notice was served in accordance with law.

10. Herein this case, no notice whatsoever was served upon defendant, who was not aware about the filing of civil suit for eviction. When a property has been let out or rented (given on rent) to anyone then, a notice is required to serve upon the defendant not only on address best known to plaintiff but also upon address of the property where the defendant is residing or carrying on business, unless same is locked. It is just an additional attempt in cases like present one where a notice has been returned as unserved. It appears that some mischief has been [2025:RJ-JP:22956] (6 of 6) [CR-127/2022] played by the reader of the Court and learned Presiding Officer remained negligent while proceeding ex-parte. Thus, this is a clear case of non-service of summon to the defendant.

11. Learned counsel for petitioner has raised an issue that the appeal is filed to challenge ex-parte judgment and decree but the option lies with defendant either to approach for setting aside of ex-parte decree or file an appeal but in case both are maintainable under different circumstances then, in case like present one, a decree cannot sustain, which was passed without service of notice.

12. In view of discussion made hereinabove, no case is made out for interference under Section 115 of CPC. Thus, the revision petition sans merit and liable to be dismissed.

13. Hence, the revision petition filed by petitioner plaintiff is hereby dismissed.

14. Misc. application, if any, stands disposed of. CHETNA BEHRANI /81 (ASHOK KUMAR JAIN),J