Dinanath Thakur vs Dinanath Sao on 14 December, 2004

Patna High Court
Dinanath Thakur vs Dinanath Sao on 14 December, 2004
Equivalent citations: 2005 (1) BLJR 374
Author: S Hussain
Bench: S Hussain


JUDGMENT

S.N. Hussain, J.

1. Heard learned counsel for the parties.

2. The petitioner is defendant-appellant who is aggrieved by order dated 5.8.2003 by which the learned 7th Additional District Judge, Rohtas at Sasaram, dismissed Misc. Appeal No. 37 of 1999 and affirmed order dated 29.7.1999 by which the learned Sub-Judge-IV, Sasaram, rejected the petitioner’s petition under Order IX, Rule 13, CPC bearing Misc. Case No, 1/1993 which was filed by the petitioner for setting aside the ex parte decree dated 21.8,1990 as amended subsequently by order dated 13.3.1992.

3. The short fact of the case is that the plaintiff-respondent-opposite party had filed Title Suit No. 25/1986 for declaration of his title and recovery of possession and for declaration that the two sale deeds relied upon by the defendant-petitioner were void and not binding upon him. The said suit was decreed ex parte on 21.8.1990 which was subsequently amended on 13.3.1992.

4. However, later the defendant filed Misc. Case No. 1/1993 under Order IX, Rule 13, CPC for setting aside the ex parte decree claiming that he had no earlier knowledge about the suit, or the decree as no notice was ever served upon him. The said Misc. Case No. 1/1993 was dismissed on 29.7.1999 against which the defendant-petitioner filed Misc. Appeal No. 37/1999 which was also dismissed by the impugned order dated 5.8.2003.

5. The learned counsel for the petitioner challenges the impugned Order mainly on two grounds. The first ground is that the learned Court below while passing the impugned order completely overlooked that the trial Court has completely violated the specific provision of Order IX, Rule 6, CPC as it had not recorded its satisfaction regarding service of notice by any mode while fixing the suit for ex parte hearing; He further contended that, according to the specific provisions of law as well as the settled principles of law In the case of Wakit Bhagat v. Rambriksh Bhagat and four Ors. reported in 1998 (2) PLJR 294, and in the case of Sushil Kumar Sabharwal v. Gurpreet Singh and Ors. reported in AIR 2002 SC 2370, it was held that non-service of summons can be a ground for setting aside ex parte decree and refusing to set aside ex parte decree passed without satisfying itself on service of summons amounts to non-observance of provision of Order IX, Rule 6, CPC. The second contention of the learned counsel for the petitioner is that the learned Court below further ignored that the trial Court also violated the provisions of Order V, Rules 18 and 19, CPC as in case of return of summons under Rule 17, CPC there should have been an affidavit of Process Server, as provided in Appendix “B” of Process 11 of First Schedule of CPC, accompanying the return of summons or notice and in case there was no such affidavit of the Serving Officer the trial Court should have examined the Serving Officer on oath or caused him to be so examined by another Court touching his proceeding. The learned counsel for the petitioner further submits that both the procedures not having been followed the learned trial Court was not justified in assuming that the notices were served and fixed the case for ex parte hearing. He further contended that even for notice published in the Gazettee, the recording of the satisfaction by the trial Court was a must and not having done so there was no occasion for the trial Court to fix the case for ex parte hearing. Hence, according to him the impugned orders of the learned Courts below were not legal and justified.

6. On the other hand, the learned counsel for the opposite party vehemently opposes the contention of the learned counsel for the petitioner and submits that the petitioner had earlier filed Civil Revision No. 1951/1998 against the lower Court’s refusal to stay the order of delivery of possession and all the points raised in this case had been raised in that case, but in spite of that this Court dismissed the above Civil Revision on 6.4.1999 and hence the contentions of the learned counsel for the petitioner has to be rejected on that ground. He further contended that satisfaction of the trial Court was implicit in the order directing for service by publication in official Gazettee and in that connection he relied upon a decision of the Hon’ble Apex Court in the case of Basant Singh and Anr. v. Roman Catholic Mission, reported in AIR 2002 SC 3557. The learned counsel for the opposite party also relied upon another decision of the Hon’ble Apex Court in the case of Mst. Bhabia Dew v. Parmanand Prasad Yadav, reported in AIR 1997 SC 1919, in which it was held that service of notice was a finding of fact on appreciation of evidence, which have been decided by the Courts below which has specifically held that the petitioner had refused to accept the notice. Consequently, the suit was rightly heard ex parte. The learned counsel for the opposite party also submitted that the learned counsel for the petitioner has wrongly relied upon a decision in the case of Bhagwan Singh and Ors. v. Ram Balak Singh and Anr., reported in 1987 PLJR 427, paragraphs 21 and 25 of which specifically show that it was with respect to different sets of facts and in that case the matter was decided only on the ground that the time granted was not found sufficient. The learned counsel for the opposite party also avers that the learned Court below has considered each and every aspect of the matter and considered the evidence on record and after appreciating all the materials before it has decided the matter which is covered by finding of fact which does not require any interference by this Court.

7. After hearing the learned counsel for the parties and after perusing the materials on record as well as the provisions of law and the case laws relied upon by the learned counsel for the parties, it is amply clear that the learned trial Court while fixing the case for ex parte hearing has clearly violated the specific provisions of law namely, Order V, Rules 17, 18 and 19, CPC and also Order IX, Rule 6, CPC which specifically states that the date appointed for hearing in the suit for which the defendant is summoned to appear is a sufficient date of hearing requiring a conscious application of mind on the part of the Court to satisfy itself on the service of summons, Any default or casual approach on the part of the Court may result in depriving a person of his valuable right to take part in the hearing of the suit and may result in a defendant suffering an ex parte decree or proceedings in the suit having been deprived of hearing for no fault of his. Had the trial Court been conscious of its obligations provided under Order IX, Rule 6, CPC the suit would not have proceeded ex parte nor such a long period of time would have been wasted. Furthermore, from the order-sheets, it is apparent that no satisfaction has been noted by the trial Court with respect to the validity of the service of summons notices. Even if the trial Court accepts the service of summons/notices, clearly the case is to be adjourned for filing written statement. But instead of doing so the trial Court adjourned the suit for ex parte hearing without either noting its satisfaction regarding service of summons or giving an appropriate adjournment to allow some time to the defendant to file his written statement.

8. Not having followed the aforesaid two specific provisions of law, the learned trial Court committed a serious error of law by fixing the case for ex parte hearing and deciding it ex parte. These aspects have been completely overlooked by the learned Courts below and hence both the impugned orders of the learned Courts below are hereby set aside and so also the ex parte judgment and decreed dated 21.8.1990/13.3.1992 passed in Title Suit No. 25/1986 and the learned trial Court is directed to hear the Title Suit afresh and decide the same on merits after hearing the parties in accordance with law.

9. With the aforesaid observations/directions, this Civil Revision is allowed.

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