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1979 DIGILAW 1031 (ALL)

Itwari v. Bechan

1979-09-21

MAHAVIR SINGH, T.S.MISRA

body1979
JUDGMENT T.S. Misra, J. - This is a petition under Article 227 of the Constitution. Bechan, the opposite party No. 1, had filed a suit against Itwari, the petitioner, and the Nyaya Panchayat Barahiya,. pargana Bewan, tahsil and district Hordoi claiming recovery of certain sum from him. It appears that summons was sent by the Nyaya Panchayat to the petitioner, but its service could not be personally effected on him. It was again sent to him with the same fate. Subsequently, the Nyaya Panchayat ordered that the service of the summons be effected on the present petitioner by beat of drum and the case was ordered to be put of on 25th August, 1970, before the Nyaya Panchayat. The order-sheet annexure 4 to the writ petition shows that the beat of drum was made accordingly. The order-sheet of 25th August, 1970 shows that the present petitioner, however, did not appear before the Nyaya Panchayat. The case was therefore ordered to be put up on 10th September, 1970. On that date also the present petitioner did not appear before the Nyaya Panchayat. The plaintiff appeared and made his statement. Then the case was adjourned to 25th September, 1970 for orders. On that date the judgment was delivered and an ex parte decree for a sum of Rs. 478.06 was passed against the present petitioner. Aggrieved by that decree, the present petitioner filed a revision petition under Section 8 of the Panchayat Raj Act in the court of Munsif West, Hardoi, on 17th May, 1972, He also alleged in para 8 of he revision petition that he came to know of the impugned decree only on 17th May, 1972, and, therefore, the revision was filed within limitation. On 20th October, 1972 an affidavit of Chhotey Lal, the 'son of Itwari, the present petitioner, was filed before the learned Munsif in the revision wherein it was averred that the knowledge of the decree was acquired only on 17th May, 1972. The learned Munsif, however, held that the grounds given in the application were not sufficient to prove that the applicant knew of the decree on 17th May, 1972. He, therefore, rejected the revision application under Section 89 of the Panchayat Raj Act. The petitioner has now come up to this court. 2. The petition is opposed and a counter-affidavit has been filed. A rejoinder-affidavit has also been filed. He, therefore, rejected the revision application under Section 89 of the Panchayat Raj Act. The petitioner has now come up to this court. 2. The petition is opposed and a counter-affidavit has been filed. A rejoinder-affidavit has also been filed. We have heard the learned counsel for the parties at great length. 3. For the petitioner it was urged that the period of limitation to file revision under Section 89 is sixty days which in the case of personal service of summon on the defendant would commence to run from the date of the order but in any other case the period would start running from the date of the knowledge of the order. It was hence urged that as the petitioner came to know of the impugned ex parte decree only on 17th May, 1972 and not before, his petition filed on that very date could not be rejected on the ground of limitation a id the learned Munsif erred in not deciding the revision petition on merits The learned counsel for the opposite party no 1, however, submitted that though personal service of summons had not been effected on the present petitioner by the Nyaya Panchayat, the petitioner did receive the knowledge of the hearing of the case when the beat of drum was resorted to. At any rate, he should be deemed to have acquired the knowledge of the pendency of the case against him before the Nyaya Panchayat and, therefore, he should have been vigilant and should have taken care to know what was going on in the case against him. Hence it would be incorrect to say that the petitioner acquired the knowledge of the ex parte decree only on 17th May, 1972. In support of his contention he also referred to the circumstance that the petitioner did not file any application which he could have filed before the Nyaya Panchayat for setting aside the ex parte decree. 4. We have carefully gone through the annexures annexed to the writ petition and have given our thoughtful consideration to the entire matter. Rule 118 of the Panchayat Raj Rules prescribes the modes of service of summons on a defendant by the Nayaya Panchayat. It says that the summons shall be served by delivery to the person concerned whose signature or thumb-impression shall be taken on the duplicate. Rule 118 of the Panchayat Raj Rules prescribes the modes of service of summons on a defendant by the Nayaya Panchayat. It says that the summons shall be served by delivery to the person concerned whose signature or thumb-impression shall be taken on the duplicate. If the person cannot be found or if the person concerned evades service, the Sarpunch, Sahayak Sarpanch or a Panch may order the summons to be served on an adult male member of the family residing with him, or affixed in presence of two witnesses to some conspicuous art of the house in which the person ordinarily resides. If this method is adopted then the summons shall be deemed to have been served on the defendant. Further Rule 118 provides that if the service cannot be effected in the manner stated here in above, the Nyaya Panchayat may cause the summons to be published in a newspaper having local circulation and on such publication also the summons shall be deemed to have been served on the person concerned. Incidentally in the case in hand the summons was not served by delivery to the present petitioner. The other mod s prescribed in Rule 118 were also not followed for effecting service of summons on the defendant i.e., the present petitioner. On the other hand, the beat of drum was ordered to be made for effecting service and there is a report on the record that the same was done but it may be noticed that the case was not taken up by the Nyaya Panchayat on the date which was proclaimed by the beat of drum rentier it was adjourned to another date and then on that adjourned date also the ex parte decree was not passed. It was passed at a later stage. So the mode which is not prescribed by Rule 118 was adopted for effecting service of summons on the defendant. This indeed was an irregular procedure adopted by the Nyaya Panchayat to effect service on the defendant petitioner. However, the question still remains as to whether the revision filed before the learned Munsif was within time. So the mode which is not prescribed by Rule 118 was adopted for effecting service of summons on the defendant. This indeed was an irregular procedure adopted by the Nyaya Panchayat to effect service on the defendant petitioner. However, the question still remains as to whether the revision filed before the learned Munsif was within time. Certainly, it was filed long after the expiry of the period of sixty days from the date of the ex parte decree but that would not make any difference inasmuch as this period of sixty days would start running in those cases where the service of summons bad been effected personally on the defendant. Hence in the present case the period of sixty days is to be calculated from the be of the knowledge of the decree. Here, the petitioner says that he acquired the knowledge of the decree only on 17th May, 1772. He filed an affidavit of his son also in support of his contention. There is nothing on the record before us to indicate that the opposite-party no. 1 ever filed any objection before the learned Munsif disputing the fact that the petitioner had acquired the knowledge of the the decree only on 17th May, 1972, nor that i he petitioner had acquired the knowledge of the decree on an earlier date. In fact no copy of any such objection has been annexed to the counter-affidavit. There was, therefore, before the learned Mum if an uncontroverted affidavit of the son of the petitioner filed in support of the allegations made by the petitioner in his revision petition. The contention on behalf of the opposite party no. 1 before us was that the petitioner himself had not filed any affidavit to corroborate the averments made in the revision petition and the affidavit of the son of the petitioner should not be taken to be sufficient decadence in support of the version. This contention is not acceptable inasmuch as the opposite-party no. 1 had not filed any objection before the learned Munsif stating that the petitioner had acquired the knowledge ' of the impugned decree on any date prior to 17th May, 1972 or even disputing that the petitioner had acquired the knowledge of the decree on 17th May, 1972. This contention is not acceptable inasmuch as the opposite-party no. 1 had not filed any objection before the learned Munsif stating that the petitioner had acquired the knowledge ' of the impugned decree on any date prior to 17th May, 1972 or even disputing that the petitioner had acquired the knowledge of the decree on 17th May, 1972. In the absence of such objection the affidavit of the son of the petitioner could not be thrown away merely on the ground that it was not stated in that affidavit that his father bad also acquired the knowledge on that very date. In fact that affidavit was filed to support the allegations of the petitioner that he had acquired the knowledge on 17th May 1972 as alleged. That affidavit remained uncontroverted. There was, therefore, no justifiable ground for the learned Munsif to reject the revision petition on the ground that it Was filed beyond time though of course the learned Munsif has not said so in specific terms this is, in fact the essence of bis judgment. In our view the petition furnished sufficient proof of the fact that he had acquired knowledge of ex parte decree only on 17th May, 1972. That being so, the revision petition having been filed on 17th May, 1972 was well within time. The learned Munsif should therefore, have decided the revision petition on merits. A manifest injustice has thus been caused to the petitioner inasmuch as the learned Munsif had failed to exercise his jurisdiction in not deciding the revision of the petition on merits The impugned order suffer from a manifest error of law resulting in substantial injustice to the petitioner. It is, therefore, liable to be quashed. 5. In the result, the petition is allowed. The impugned order dated 20th February, 1973 bassed by the earned Munsif West Hardoi is quashed. The learned Munsif is directed to hear the revision petition on merits and in accordance with law. In the circumstances of the case, we, however, make no order as to costs.