IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 619 of 2010
Smt. Sangita Sharma ........Petitioner
Versus
1. Upendra Kumar.
2. Anjani Kumar.
3. Smt. Gyatri Devi. .........Respondents
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Coram: THE HON'BLE MR. JUSTICE R.K. MERATHIA
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For the Petitioner : Mr. Rohit Roy, Advocate
For Respondent nos. 1 and 2 : Mr. Anil Kumar Sinha, Sr. Advocate
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5/30/06/2010
Heard.
This writ petition has been filed for quashing the order
dated 4.1.2010, passed by learned Munsif-1st, Dhanbad in Title Suit
No. 101 of 2005.
Mr. Roy, appearing for the petitioner, and counsel for
respondent nos. 1 and 2 submitted that for disposal of this writ
petition, no notice is required to be sent to respondent no. 3-Smt.
Gyatri Devi.
Mr. Roy submitted that neither any affidavit was filed on
behalf of process server, nor he was examined to prove service of
summons in terms of Order 5, Rule 19 CPC. He further submitted that
notice sent by registered post has been presumed to have been
served in terms of proviso to Rule 9 (5) and therefore petitioner may
be given a chance to contest the suit.
Counsel for respondent nos. 1 and 2 supported the
impugned order. He submitted that when the case was posted for
argument, a petition was filed on behalf of the petitioner complaining
that no notice has been served and if the impugned order is allowed
to stand, it will amount to de novo trial.
It appears that notices in the suit were sent to the
petitioner through process server as well as by registered post. It is
true that the service by process server cannot be accepted as the
provisions of Order 5, Rule 19 CPC has not been complied inasmuch
as there is no affidavit or evidence of the process server in support of
service of notice. But so far as the service of notice through
registered post is concerned, there is legal presumption of service of
notice which was duly accepted also by the learned court below
before proceeding with the suit further and therefore petitioner
cannot complain that there was no valid service of notice on him.
When I expressed that I am not inclined to interfere with
the impugned order, Mr. Roy submitted that petitioner is ready to
compensate the other side by cost and that the petitioner may be
given one chance in the interest of justice.
In view of such submission, I am inclined to give one
chance to the petitioner in the interest of justice and in order to avoid
multiplicity of litigation.
It appears that petitioner’s prayer for filing written
statement and contesting the suit was rejected. If the written
statement is filed by the petitioner within two weeks, the same may
be accepted and he may be given chance to contest the suit.
Petitioner is directed to fully cooperate in early disposal of the suit.
The trial court will expedite the hearing of the suit.
This order is subject to payment of cost of Rs.15,000/-
( Fifteen thousand only) by the petitioner to the contesting party in
the court below within four weeks from today.
With these observations and directions, this writ petition
is disposed of.
( R.K. Merathia, J).
Rakesh/