IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.459 of 2005
MOST.DARBI DEVI & ORS
Versus
CHANDRAKALA DEVI & ORS
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14 10.07.2008 Heard counsel for both the
parties.
The plaintiff petitioners
respondents have assailed the order dated
14th of December, 2004 in Misc. Appeal
No. 21 of 1985 whereby and whereunder the
appellate Court has set aside the order
dated 29.8.1985 passed by the Court below
refusing to set-aside the exparte judgment
and decree passed in Title Suit No. 81 of
1977.
Counsel for the petitioner has
vehemently argued that the approach of
lower appellate Court in fact seems to be
quite erroneous inasmuch as even it is
accepted that the Postal Peon’s report was
some how obtained and/or interpolated yet
it had to consider that there was already a
substituted service and therefore, the
summons would be deemed to have been served
2
effectively on the defendant opposite
parties.
On the other hand, counsel for the
defendant opposite parties has submitted
that even the plea of substituted service
by publication of notice in the newspaper
cannot be accepted to be a valid service
because it was published in some local
periodical namely ‘Angar’ which was neither
a daily newspaper nor had any circulation
in the locality of the residence of the
defendant opposite parties and as such did
not fulfill the requirement of substituted
service in terms of Order-V Rule-20 C.P.C.
In the opinion of this Court the
submission of the learned counsel for the
defendant opposite parties seems to be
correct. The findings of the lower
appellate court on the plea of substituted
service based on evidence in this regard is
quite specific that the periodical
‘Angar’is a weekly magazine and not a daily
newspaper and had no circulation in the
locality. That apart finding recorded by
3
that summons were actually not served on
the opposite parties, appellants in this
Misc. case is also unexceptional. The
counsel for the petitioner infact could not
point out any error in such finding
recorded by the lower appellate court in
the impugned order.
It has always to be kept in mind
that a suit has to be disposed of on merit
in preference to its being decided exparte.
In that view of the matter, the
present Civil Revision Application seeking
to assail the order of the lower appellate
Court is devoid of any merit. This Court is
not unmindful of the fact that the suit is
of the year, 1977 and in which the
plaintiffs had already completed their
evidence and the exparte judgment came to
be passed on 27.1.1979. Thus if at the
instance of the defendant-opposite parties
the suit has to be heard on merit they must
co-operate for its expeditious disposal.
Accordingly, this Court would
direct the trial Court to take up this
4
suit of the year, 1977 on priority basis
and ensure that the same is disposed of
within one year from the date of
receipt/production of a copy of this
order. It is made clear in presence of
counsel for both the parties in this Court
that if any party would seek unnecessary
adjournment in the suit so as to extend the
period of one year, the Court below will be
at liberty to proceed ahead without giving
any further indulgence in this matter.
With the aforesaid observation
and direction this Civil Revision
application is dismissed.
BCJ (Mihir Kumar Jha, J.)