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of <h1>Supreme Court sets aside lower courts, grants defendant's plea for fair hearing under Order 9 Rule 13 CPC. Remanded for proper proceedings.</h1> <h3>SUSHIL KUMAR SABHARWAL Versus GURPREET SINGH AND ORS.</h3> SUSHIL KUMAR SABHARWAL Versus GURPREET SINGH AND ORS. - 2002 AIR 2370 2002 (3) SCR 352, 2002 (5) SCC 377, 2002 (4) JT 489, 2002 (4) SCALE 280 Issues involved:Landlord-tenant litigation, Ex-parte decree, Proper service of summons under Code of Civil Procedure, Setting aside ex-parte decree under Order 9 Rule 13 CPC.Analysis:1. Proper Service of Summons:The main issue in this case is whether the defendant-tenant was properly served with the summons as per the Code of Civil Procedure. The process server claimed to have tendered the summons to the tenant, who allegedly refused to accept it. However, discrepancies arose regarding the process server's actions, as the endorsement on the summons contradicted his court testimony. Additionally, the process server failed to follow the proper procedure for service as outlined in Rules 17 and 18 of Order 5 CPC, including affixing a copy of the summons on the shop's wall and having witnesses present during the service. The tenant denied receiving any summons, leading to a conflict of testimonies.2. Setting Aside Ex-parte Decree:The tenant filed an application under Order 9 Rule 13 CPC to set aside the ex-parte decree, which was rejected by the Trial Court and the Civil Revision met with the same fate. The High Court overlooked the second proviso to Rule 13 of Order 9 CPC, which states that a decree passed ex-parte cannot be set aside merely due to irregularity in service if the defendant had notice of the hearing date and sufficient time to appear. The appellant's awareness of the suit's pendency was emphasized by the High Court, but the Supreme Court clarified that knowledge of the date of hearing, not just the pendency of the suit, is crucial.3. Court's Obligation and Discretion:The Court highlighted the importance of the Trial Court's obligation under Order 9 Rule 6 CPC to ensure proper service of summons before proceeding ex-parte. The provision mandates that the Court must be satisfied that the summons was duly served before granting an ex-parte order. Failure to adhere to this obligation may result in a defendant being deprived of the right to participate in the proceedings, leading to an unjust ex-parte decree. The Trial Court's oversight in confirming proper service resulted in a serious error of law and a failure of justice.In conclusion, the Supreme Court allowed the appeal, set aside the Trial Court and High Court's orders, and granted the defendant's application under Order 9 Rule 13 CPC to set aside the ex-parte decree. The case was remanded back to the Trial Court for further proceedings, emphasizing the importance of proper service of summons and the defendant's right to a fair hearing.
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