HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) NO.2460 OF 2008
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Upendranath Dey ....... Petitioner.
- Versus-
Ananta Kumar Dey and others ....... Opposite Parties
For petitioner : M/s. Ramakanta Mohanty, D.K.
Mohanty, A.P. Bose, S.K.Mohanty,
P. Jena, D. Patnaik, S.N. Biswal
and S. Mohanty
For Opp. Parties : M/s. P.K. Jena, N. Panda
and D.P. Mohapatra (O.P.1)
PRESENT:
THE HONOURABLE SHRI JUSTICE B.K. PATEL
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Date of argument – 3.11.2010 :: Date of judgment – 19.11.2010
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B.K.PATEL, J. Petitioner has assailed in this writ petition the legality of
order dated 28.1.2008 passed by learned Civil Judge, (Junior Division),
Jaleswar in Misc. Case No.3 of 2006 by which opposite party no.1’s
application under Order 9 Rule 13 of the C.P.C. was allowed and ex
parte decree passed in T.S. No.130 of 1991 by learned Munsif, Balasore
was set aside subject to payment of cost of Rs.4,5000/-.
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2. Petitioner is the plaintiff and opposite party no.1 is the
defendant no.1 in T.S. No.130 of 1991. Petitioner has filed the suit
for correction of M.S. ROR. Petitioner’s case is that in response to
notice opposite party no.1 entered appearance through Sri B. Jena,
Advocate and took time thrice to file written statement. However, as no
written statement was filed by opposite party no.1, ex parte decree was
passed on 2.11.1992 in favour of the petitioner. Pursuant to the
decree petitioner filed mutation cases bearing Misc. Case Nos.47 and
48 of 1995 in which also opposite party no.1 did not appear in spite of
service of notice and M.S. ROR was corrected. Long after thirteen
years, opposite party no.1 filed application under Order 9 Rule 13 of
the C.P.C. accompanied by application under Section 5 of the
Limitation Act. Petitioner filed objections against both the applications.
In support of opposite party no.1’s assertions P.W.1 was examined and
documents marked Exts.1 to 3 were admitted into evidence. It is
averred in the writ petition that without affording any opportunity to
the petitioner to cross-examine P.W.1, the impugned order was passed
erroneously holding that summons was not served on the opposite
party no.1 in the suit.
3. It was contended by the learned counsel for the petitioner
that order sheet in T.S. No.130 of 1991 reveals that opposite party no.1
had entered appearance through Sri B. Jena, Advocate on 4.5.1992
and filed petitions for time to file written statement and for setting
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aside the order setting him ex parte. On 24.6.1992 also opposite party
no.1 had filed petition for time to file written statement which
was allowed subject to payment of cost of Rs.10/-. However, opposite
party no.1 neither paid cost nor took any step on 6.7.1992 and
28.7.1992 for which application dated 4.5.1992 to set aside the order
setting opposite party no.1 ex parte was rejected. Notice was issued to
opposite party no.1 in mutation cases also, but he did not participate
in the proceeding before the Tahasildar. After long lapse of thirteen
years, opposite party no.1 filed application under Order 9 Rule 13 of
the C.P.C. on the ground that the petitioner had not supplied correct
address of opposite party no.1 and committed fraud on the court in
order to obtain ex parte decree and that opposite party no.1 had no
knowledge regarding the ex parte decree till he was told regarding the
same by his lawyer appearing in C.S. No.65 of 2003-1. Learned court
below passed the impugned order without considering petitioner’s
objections and without giving him opportunity to cross-examine
opposite party no.1’s son who was examined as P.W.1. It was
strenuously contended that learned court below had no basis to come
to the finding that the opposite party no.1 had no knowledge regarding
the ex parte decree till filing of application under Order 9 Rule 13 of the
C.P.C. in the year 2006.
4. It was contended on behalf of learned counsel for the
opposite party no.1 that petitioner practised fraud on the court to
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obtain ex parte decree dated 2.11.1992. No notice was ever served on
opposite party no.1 in the suit. He did not execute any Vakalatnama
in favour of Sri B. Jena, Advocate. Opposite party no.1 could know
about the ex parte decree from his lawyer appearing in C.S. No.65 of
2003-1 in which copy of the ex parte decree was filed by the petitioner
on 30.11.2005. Evidence was adduced on behalf of opposite party no.1
to substantiate such assertions. P.W.1 was cross-examined on behalf of
the petitioner. No evidence was adduced on behalf of the petitioner to
substantiate the claim that notice was issued to opposite party no.1 or
that opposite party no.1 entered appearance through any counsel.
Learned court below has passed the impugned order upon perusal of
the case record which indicates that service of summons on opposite
party no.1 was held by order dated 22.2.1992 to be sufficient after
‘refusal postal service’. S.R. and P.A. of opposite party no.1 indicating
due service of notice was not available in the case record. Learned
court below has awarded exemplary cost of Rs.4,500/- to take care of
inconvenience caused to the petitioner. In such circumstances, there is
no reason to interfere with the finding of fact regarding non-service of
summons in exercise of writ jurisdiction.
5. Non-service of summons against a defendant is one of the
two statutory grounds under Order 9 Rule 13 C.P.C. for setting aside a
decree passed against him ex parte. Provision, inter alia, mandates that
in any case in which a decree is passed ex parte against a defendant, he
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may apply to the Court by which the decree was passed for an order to
set it aside; and if he satisfies the court that the summons was not duly
served, court shall make an order setting aside the decree as against
him upon such terms as to costs.
It has been held in Rabindra Pras Kamilla -v- Abhaya Prasad
Kamilla: (1987) CLT (supp.) 428 that Order 9 Rule 13 C.P.C. is a
beneficial legislation for the benefit of the defendant against whom
ex parte decree has been passed. Subject to the specific preconditions,
the same is to be interpreted liberally in favour of the defendant
applying for setting aside the ex parte decree. In Prafulla Chadra
Deo -v- Satyanarayan Chandra Deo and another : 1992(I) OLR 277
and Bishnu Charan Malla -v- Sanskarsan Mohapatra alias Behera
and others: 2003(I) OLR 61 it has been observed that even if a
defendant might have knowledge of the suit, yet he is within his right
to expect an effective service of summons on him calling upon him to
appear in court and unless such service is made, he may avoid the
Court. In Lundu Roudia -v- Dusman Roudia: 1996(II)OLR 355 it has
been held that while dealing with application under Order 9 Rule 13
C.P.C. court should see that the rights of the parties are determined on
contest. Approach should not be over technical and contrary to liberal
and should be justice oriented.
6. Case of the present opposite party no.1 is that no
summons was served on him in the suit. He came to know regarding
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the ex parte decree when copy of the same was filed in court by the
petitioner on 30.11.2005 in I.A. No.3 of 2004 arising of Civil Suit
No.65 of 2003-I. Application under Order 9 Rule 13 C.P.C. was filed
on 16.1.2006 along the application under section 5 of the Limitation
Act and a medical certificate indicating opposite party no.1’s illness
from 1.11.2005 to 13.1.2006. Petitioner filed objections to the
petitions filed by the opposite party no.1. Opposite party no.1 had
executed power of attorney in favour of his son who was examined as
P.W.1. In his affidavit evidence P.W.1 reiterated the assertions made
in the applications under Order 9 Rule 13 C.P.C. and section 5 of the
Limitation Act. His evidence regarding illness found corroboration
from the medical certificate Ext.3. Certified copy of the order in
I.A.No.3 of 2004 was also filed at Ext.2. Though order sheets in
T.S.No.130 of 1991 indicates that the opposite party no.1 appeared
through Mr. B.Jena, Advocate and filed petitions for time on 4.5.1992
and 26.6.1992, no suggestion whatsoever was given to P.W.1 in course
of his cross-examination regarding opposite party no.1’s appearance in
court. P.W.1 appears to have reiterated in course of his cross-
examination that no notice was served on his father. Moreover, no oral
or documentary evidence was adduced on behalf of the petitioner to
indicate service of summons on opposite party no.1. Even the
Vakalatnama alleged to have been executed by P.W.1 in favour of Sri
B.Jena, Advocate was not confronted to P.W.1. On examination of the
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case record learned court below does not appear to have found the S.R.
and P.A. of opposite party no.1. Finding of the learned court below
regarding non-service of summons having been based on the basis of
such materials on record, in view of the statutory provisions under
Order 9 Rule 13 C.P.C. and legal principles indicated above, there
appears no ground to interfere with the impugned order.
Therefore, the writ petition is dismissed.
…………………..
B.K. Patel, J.
Orissa High Court, Cuttack,
The 18th Nov., 2010/Jhankar
