Brij Nandan Prasad vs Uchit Singh on 21 July, 2010

Patna High Court
Brij Nandan Prasad vs Uchit Singh on 21 July, 2010
Author: Akhilesh Chandra
                             MISC. APPEAL No.19 OF 2003

                                       *******

                   Against the order dated 4th December, 2002,
                   Passed by 01st Subordinate Judge, Patna, in
                   Miscellaneous Case no. 23 of 1998.

                                       *******

                   BRIJ NANDAN PRASAD------------Appellant

                                          Versus

                   UCHIT SINGH------------------Respondent

                                       *******

                   For the Appellant : M/s Shashi Shekhar
                                           Dwivedi, Ranjan
                                           Kr. Dubey, Sangeeta
                                           Sharma & Rakesh
                                           Chandra

                  For the Respondent : Mr. Sushil Kr. Mazumdar.

                                       *******

                                     P R E S E N T

                  THE HON'BLE MR. JUSTICE AKHILESH CHANDRA


Akhilesh                    Heard learned counsel for the appellant and
Chandra, J.

respondent.

2. This appeal has been preferred by the appellant

against order dated 04th December, 2002 passed by Subordinate

Judge, First , Patna in Miscellaneous Case no.23 of 1998

dismissing the same on contest and refusing to set aside ex-

parte judgment and decree passed in Title Suit no.589 of 1990
2

in the year 1993.

3. The relevant and admitted short facts of this

case is that respondent had filed the suit bearing no. 589 of 1990

for specific performance of contract against the appellant who

did not contest the suit. It was decreed ex-parte and the

execution proceeding was initiated. As per appellant he got

information of the suit and filed the Miscellaneous case seeking

relief for setting aside the decree on the ground that he had not

been served with any type of summon or notice at any point of

time, had sufficient cause for non-appearance / participation in

the suit. There was another suit between the parties at Gaya

wherein the plaintiff-respondent was defendant and he also filed

written statement there. It is the case of respondent-opposite

party that since beginning the appellant had knowledge of the

suit, summons were duly served by all possible means,

through process server of the court, registered post and by

publication in daily news paper, Hindustan Times. Further in

written statement filed in the suit at Gaya he had annexed the

judgment and decree of the suit but no step was taken by the

appellant . He does not deserve condonation of delay of five

years caused in filing of the Miscellaneous case.
3

4. Miscellaneous Case no.23 of 1998 was hotly

contested. Both the sides produced oral and documentary

evidence. On behalf of opposite party-respondent following

were the documents:

” Exhibit-A. – Service report of T.S. 589/90
Exhibit A/1- Paper Publication
Exhibit-B- Power
Exhibit-C- Inspection Slip
Exhibit-C/1- Service report of Process Server
Exhibit-D- Written Statement
Exhibit-E- Forwarding Letter with objection.

              Exhibit-E/1-     Notice without objection
              Exhibit-F -     Writing and signature of Braj
                               Bihari Singh, Adv. on power."

5. It was also case of the appellant that on service

of notice in execution proceeding he got the record inspected

soon thereafter filed in Miscellaneous Case. On behalf of the

appellant there are two documents, Exhibit-1 Vakalatnama and

Exhibit-2 Inspection slip filed on 06.08.1998. The plaintiff-

respondent has also taken a view that in 1993 on behalf of the

appellant there was an inspection slip by engaging another

lawyer and he, by virtue of that, also had information of suit and

its proceeding but inspite of that no step was taken. All such

completely disentitles him for the relief claimed.

6. During the course of argument learned counsel

for the appellant, by placing reliance upon decision of the Apex
4

Court in the case of G.P. Srivastava V. R.K. Raizada, (2000)

3 S.C.C. 54; submitted that unless it is shown that defendant

has specific information by service of notice about the date of

hearing ex-parte decree cannot sustain. In paragraph 7 of the

judgment the Apex Court has said like this:

“7. Under Order 9 Rule 13 CPC an ex parte decree
passed against a defendant can be set aside upon
satisfaction of the Court that earlier the summons
were not duly served upon the defendant or he
was prevented by any “sufficient cause” from
appearing when the suit was called on for
hearing. Unless “sufficient cause” is shown for
non-appearance of the defendant in the case on
the date of hearing, the court has no power to set
aside an ex parte decree. The words “was
prevented by any sufficient cause from
appearing” must be liberally construed to enable
the court to do complete justice between the
parties particularly when no negligence or
inaction is imputable to the erring party.
Sufficient cause for the purpose of Order 9 Rule
13 has to be construed as an elastic expression for
which no hard and fast guidelines can be
prescribed. The courts have a wide discretion in
deciding the sufficient cause keeping in view the
peculiar facts and circumstances of each case.
The “sufficient cause” for non-appearance refers
to the date on which the absence was made a
ground for proceeding ex parte and cannot be
stretched to rely upon other circumstances
anterior in time. If “sufficient cause” is made out
for non-appearance of the defendant on the date
fixed for hearing when ex parte proceedings were
initiated against him, he cannot be penalized for
his previous negligence which had been
overlooked and thereby condoned earlier. In a
5

case where the defendant approaches the court
immediately and within the statutory time
specified, the discretion is normally exercised in
his favour, provided the absence was not mala
fide or intentional. For the absence of a party in
the case the other side can be compensated by
adequate costs and the lis decided on merits.”

7. Learned counsel further relied on the decision

of the Apex Court in the case of Sushil Kumar Sabharwal V.

Gurpreet Singh, A.I.R. 2002 S.C. 2370; wherein in paragraph

11 it has been held as such :

“11. The High Court has overlooked the second
proviso to Rule 13 of O. 9, C.P.C., added by the
1976 amendment which provides that no Court
shall set aside a decree passed ex parte merely on
the ground that there has been an irregularity in
the service of summons if it is satisfied that the
defendant had notice of the date of hearing and
had sufficient time to appear and answer the
plaintiff‟s claim. It is the knowledge of the „the
date of hearing‟ and not the knowledge of
„pendency of suit‟ which is relevant for the
purpose of the proviso above said. Then the
present one is not a case of mere irregularity in
service of summons; on the facts; it is a case of
non-service of summons. The appellant has
appeared in the witness-box and we have
carefully perused his statement. There is no
cross-examination directed towards discrediting
the testimony on oath of the appellant, that is, to
draw an inference that the appellant had in any
manner a notice of the date of hearing and had
sufficient time to appear and answer the
plaintiff‟s claim which he did not avail and
utilize.”

6

8. Further reliance has been placed on a decision

of this Court in the case of Parshuram Pathak V. Smt. Shiv

Kumari Kuer, 2001 (1) P.L.J.R. 428; wherein also almost

similar view was taken.

9. On the basis of all the above decisions it was

contended that there is nothing on record to show any valid

service upon the defendant appellant. Undisputedly, the

process server, who is said to have visited the house of the

appellant along with summons, never met the appellant but as

per his report marked Exhibit-C/1 notice was hanged on the

wall. There is further nothing on record by way of exhibit to

show that any step was taken for summon on defendant-

appellant through registered post. No doubt, there is paper

cutting to show that notice was published in the newspaper but

again there is nothing on record to show that defendant had any

such knowledge. So far filing of written statement in another

case annexed with copy of ex parte judgment and decree is

concerned, it is the case of appellant that he was fighting that

case through his counsel and had no occasion to go through

such papers. This much he had stated by examining himself as
7

A.W.1 also.

10. Learned counsel for the plaintiff-respondent

contends that there was proper service upon the defendant, even

by registered post but in absence of any paper brought on the

record of the Miscellaneous Case by way of postal receipt,

endorsement of postal peon, if notice was returned unserved or

refused or on any other count it is difficult to accept that any

step for notice through registered post was taken. It is also

vehemently contended that notice was published in newspaper

and it is to be presumed that defendant must have gone through

it. All such presumption are rebuttable. The decision of Apex

Court in the case of Basant Singh V. Roman Catholic

Mission, 2002 (4) P.L.J.R. 186 ; reliance whereon has been

placed by learned counsel is not applicable in this case. Before

the Apex Court in the above case there was ample evidence to

show that notices through registered post were sent and Court

was convinced that notice was served only thereafter without

any order of the trial court notice was published in newspaper

that was nothing but irregularities in notice and on that point

the ex-parte decree was not liable to be set aside but here, in the

instant case, as stated above, there is nothing to show that any
8

step was taken for service of summons through registered

posts, so there is no reason to accept service of summon by

such means.

11. There is one document by way of Exhibit-B,

that is, the Vakalatnama said to have been executed by the

appellant in the year 1993 the appellant has simply denied filing

of such Vakalatnama by him and the signature thereon. None

of the parties took any step to get the alleged signature of the

appellant thereon compared with other admitted signature. In

this regard it is submitted by learned counsel for the appellant

that he is to simply deny. It was the duty of respondent

opposite party to get the same examined by expert whereas just

reverse is the contention of learned counsel for the respondent.

According to him he has brought the power on record and it is

the duty of appellant to specifically get the same examined if he

has denied the signature.

12. From the impugned order it appears that court

below though heavily relied upon this document but also was

not very much keen to do some personal comparison with

specific admitted document. Signature of the appellant on this

document, Exhibit-B, if compared by naked eyes with his
9

signature on deposition as A.W.1. Prima facie with certain

natural variation appears to be same but in absence of any

scientific test to arrive at any definite conclusion. Had either of

the side taken pains at appropriate stage, position could have

been different.

13. It is also to be taken care of that original suit

was filed in the year 1990, already travelled to twenty odd

years without any positive result. If at this stage, the case is

remitted, for such test etc. it may cause further prejudice and

loss to both the sides besides undue encumbrance upon the

judicial system. In that view of the matter, it seems desirable

that ex-parte decree of the trial court be set aside and appellant

be given an opportunity to file his statement, contest the suit but

at the same time none of the parties be given any room for

causing further delay and simultaneously the appellant must

compensate the loss causes to the respondent as well as judicial

system, for the delay caused and prima facie laches on his part.

14. However, in view of the above, this appeal

stands allowed subject to cost of Rs.25,000/-, out of which

Rs.5,000/- shall go to High Court Legal Services Authority and

Rs.20,000/- shall be paid to the plaintiff-respondent. The
10

amount must be paid within thirty days from today. Any failure

in compliance shall be treated as dismissal of this appeal. Party

shall appear before the court below on 20th Augusts, 2010 and

the defendant appellant shall file his written statement,

documents relied upon and list of witnesses, if any, positively

within fifteen days of appearance on 20th August, 2010. The

Court below is directed to dispose of the suit preferably within

six months even by proceeding on day to day basis. Office is

directed to transmit the lower court record along with a copy of

this order to the court concerned positively.

(Akhilesh Chandra, J.)

Patna High Court,
The 21st July, 2010.

AAhmad/ (N.A.F.R.)

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