MISC. APPEAL No.19 OF 2003
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Against the order dated 4th December, 2002,
Passed by 01st Subordinate Judge, Patna, in
Miscellaneous Case no. 23 of 1998.
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BRIJ NANDAN PRASAD------------Appellant
Versus
UCHIT SINGH------------------Respondent
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For the Appellant : M/s Shashi Shekhar
Dwivedi, Ranjan
Kr. Dubey, Sangeeta
Sharma & Rakesh
Chandra
For the Respondent : Mr. Sushil Kr. Mazumdar.
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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
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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.
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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
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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
5case 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.”
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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
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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
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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
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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
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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.)
