Budhiya v. State of Uttar Pradesh — 1982 DIGILAW 1076 (ALL)

JUDGMENT R.S. Verma, M. - This revision petition is against the orders of the trial court and also against the order of the learned Additional Commissioner. 2. The facts of the case are that Smt. Budhiya and Girraj Prasad filed a suit for declaration against U.P. State, Nagar Palika, Gorakhpur, and the Imperial Bank of India in the year 1980 in respect of a plot which was recorded in the Khatauni in the name of the Imperial Bank of India. None of the defendants entered appearance and hence the suits was decreed ex parte on May 27, 1981. A declaration was made in favour of the plaintiffs to the effect that they were Bhumidhars of the land in suit and an order was passed for the expunction of the name of the Imperial Bank of India from the revenue records. 3. On December 2, 1981, the Gorakhpur Development Authority filed an application for setting aside that order. On December 9, 1981, the Charu Chandrea Das Trust, Gorakhpur, filed another application for setting aside the ex parte order and on January 25, 1982 the U.P. State filed the third application for setting aside the ex parte order. Before the ex parte order was set aside and the suit was revived, the learned trial court passed on order for impleadment of the Gorakhpur Development Authority. Later on the learned trial court set aside the ex parte decree and revived the case. Against the, the plaintiffs of the case filed a revision to learned Additional Commissioner, but without success. Thereafter, the plaintiffs have filed this revision petition in this court. 4. As regards the applications of Gorakhpur Development Authority and of the Charu Chandra Das Trust, it has been argued by the learned counsel for the revisionists that these bodies were not parties to the suit and are not bound by the ex parte order and hence the applications for setting aside the ex parte order given on their behalf were not maintainable. At present, I will not deal with this aspect of the case. 5. At present, I will not deal with this aspect of the case. 5. As regards the application of the U.P. State given for setting aside the ex parte order, it has been argued by the learned counsel for the revisionist that the U.P. State had been served in the case and it had not entered appearance and had not contested the suit and hence its application was time-barred and has also no merits in it. This argument is specious. There are certain facts in the case which throw much doubt on the conduct of the whole proceedings which ended in the ex parte decree in favour of the plaintiffs. 6. The first important fact is that the land in suit was recorded in the name of the Imperial Bank of India was dissolved in the year 1955 by the State Bank of India Act, 1955, (Act, No. XXIII of 1955), Sec. 55 of that Act lays down that the person shall make any claim or demand or take any proceedings in India against the Imperial Bank. The plaintiffs and their counsel must have known this fact because it is a matter of common knowledge that the Imperial Bank of India was dissolved and was re-named the State Bank of India. It is quite immaterial that in the revenue papers the name of the Imperial Bank of India continued to be recorded as tenant, but there could be no doubt in the mind of any person that such a juristic person could exist in the year 1980 when the present suit was filed. The fact that the plaintiffs in spite of this filed the suit against the Imperial Bank of India, discloses a mala fide intention and it can be presumed that the plaintiffs had not come with a clean hand in the case. In these circumstances, I think that the suit itself was incompetent because the Imperial Bank of India had been sued through Section 55 of the State Bank of India Act, 1955, prohibited such filing of a suit against that Bank. 7. The next suspicious circumstances is that no regular summons was sent to the Imperial Bank of India; with a view to avoid any report of the Process Server disclosing that such a body did not exist at that time. 7. The next suspicious circumstances is that no regular summons was sent to the Imperial Bank of India; with a view to avoid any report of the Process Server disclosing that such a body did not exist at that time. I must here comment on the conduct of the learned Assistant Collector himself, who did not keep this aspect of the matter in his view and proceeded with the case as if he had absolutely no responsibility to see whether the frame of the suit was correct or not and whether there was any possibility of any fraud being committed by the parties in respect of each other or on the court itself. However, the fact remains that no regular summons was served on the Imperial Bank of India, and the set of facts discloses that such a service could not have been affected on the Imperial Bank of India because no such body existed at that time. The plaintiffs, instead, sent registered notices at the address of the Imperial Bank of India and the file shows that those notices were not returned. In the normal course of nature, a presumption can, of course, be made that when a duly sent registered notice is not returned, it has reached the addressee, but in a case where it has been proved that such a person did not at all exist at any time after 1955, such presumption cannot be made. The very fact that non-existing juristic person has been impleaded as a party because of the faulty maintenance of the revenue records will go to show that there must have been present in the mind of the plaintiffs an intention to commit fraud. Some times, the facts are so clear that such inference can be readily made. However, if such an intention to commit fraud was not present in the mind of the plaintiffs, there can be no doubt that because of this fact a fraud had actually been committed on the court itself, though the court itself was unwittingly a party to that. In A.I.R. 1922. Sind 20, it was held that where the plaintiff got summons served on a wrong person suppressing the father's name of the real defendant and knowing full well that the defendant was not a partner got him impleaded as a partner, the decree was tainted with fraud in A.I.R. 1914 Lah. In A.I.R. 1922. Sind 20, it was held that where the plaintiff got summons served on a wrong person suppressing the father's name of the real defendant and knowing full well that the defendant was not a partner got him impleaded as a partner, the decree was tainted with fraud in A.I.R. 1914 Lah. 450 it was held that where the plaintiff fairly and intentionally represented to the court that the defendant was away in a distant place and not substituted service effected, the decree passed in that case as vitiated by fraud. These rulings though actually not on all fours with the facts of the present case, show that in certain circumstances without providing any other fact it can be inferred that fraud has been practised. At the risk of repetition I may say here that this case also demonstrate the existence of a state of affairs in which the element of fraud cannot be ruled out from the conduct of the plaintiffs. Why did the plaintiff or the court not insist that regular summons should be issued to the Imperial Bank of India? Why the report of the process server or of the postal employee was not obtained? How could it be presumed by anyone, including the court that Imperial Bank of India had been served? If it was entirely impossible to effect service on the Imperial Bank of India, why the suit proceeded against that body? The proceedings without any actual service on the Imperial Bank of India because of the fact that such a body did not exist at all, was absolutely illegal and any decree passed in the case was, in my opinion a nullity. 8. The third important factor is that the suit was filed on August 1, 1980. On the next date i.e. August 17, 1980 the court ordered that summons be issued and it simultaneously transferred the case to another court. The actual transfer order passed was passed on July 16, 1980 i.e. one month before the date on which it was put up in the court of the S.D.O. on August 17, 1980. On August 30, 1980, it was found out that summons had not been sent. Without obtaining any order from the court the plaintiffs sent registered notices to the defendants. On August 30, 1980, it was found out that summons had not been sent. Without obtaining any order from the court the plaintiffs sent registered notices to the defendants. Up to November 27.1980 acknowledgement due had not been received and on that date, it was good order that the service of the notices must be presumed. A summons was issued to the U.P. State on September 20, 1980, which showed that the case was pending in the court of the S.D.O. Sadar, Gorakhpur. This summons was, of course not served on the State of U.P. because there is no endorsement on the back of it that any body received it on behalf of the State. But the material fact is that though on September 2, 1980 the case was not pending in the court of the S.D.O. Sadar, Gorakhpur the summons showed that it had been issued from the court of the S.D.O. , Sadar, Gorakhpur and the case was pending in that very court and not in any other court. This very fact shows that either intentionally or unintentionally the U.P. State was deceived and an impression was impleaded in its mind that the case was pending in the court of S.D.O., Sadar, Gorakhpur though the fact was that no such case was pending in that court, it such a case, the only natural conduct for the District Government Counsel (Revenue) would have been to go in the court of the S.D.O. Sadar and find out about this case. But as no such case was pending in that court, any attempt by the District Government Counsel (Revenue) would have been futile. In this context it would be relevant to go through the application of the State of U.P. given for the purpose of setting aside the ex parte decree. It was alleged that the U.P. State had not received any summons from the court of Sri Uttam Kumar, Astt. Collector, Ist Class and that it had received a summon from the court of the S.D.O., Sadar, and when its counsel went to that court such a file was not perfectly correct and circumstances shows that the U.P. State was deliberately misled by the plaintiff. It will be presumed in such circumstances that actually there was no service of summons on the U.P. State as far as the present case pending in the court of Sri Uttam Kumar was concerned. It will be presumed in such circumstances that actually there was no service of summons on the U.P. State as far as the present case pending in the court of Sri Uttam Kumar was concerned. In A.I.R. 1971 Pat. 131, it was held that where a suit was transferred by court 'A' to court 'B' but notice of such transfer was not given to the defendant and he did not appear in the court 'B' which decreed the suit ex parte against the defendant, the absence of notice of the transfer was as sufficient ground for the defendant;s non-appearance in the court and the decree could be set aside under order IX rule 18 Code of Civil Procedure. The case of the U.P. State in this case is much better than the case reported in the ruling cited above. Herein summons actually sent showed that the case was pending in another court. This is a clear case of fraud. No service of summons is adequate unless the name of the court, the date of hearing and other particulars including a copy of the plaint is sent to the defendant. Here, most acts were intentionally suppressed by the plaintiffs and that no only this, a wrong description of the court was given so that the State of U.P. may be misled. This is a clear case in which the ex parte order passed against the U.P. State must be set aside. 9. The learned counsel for the revisionist has argued that the learned trial court as well as the learned first revisional court gave certain reasons for setting aside the ex parte order and that these reasons are not tenable, and that it those reasons are not tenable the order itself cannot be maintained. I think it unnecessary to enter into this controversy. The file is before this court and this court has now got full power to look into all and every aspect of the matter in the interest of justice. 10. For the reasons I have set out above, the ex parte under order cannot be upheld and the learned lower court had rightly set aside the ex part order and had done real justice in the case. 11. In such a case, question of limitation does not arise. 10. For the reasons I have set out above, the ex parte under order cannot be upheld and the learned lower court had rightly set aside the ex part order and had done real justice in the case. 11. In such a case, question of limitation does not arise. The U.P. State had mentioned in this application that it came to know about the ex parte decree on January 25, 1982 and on the same day it filed the application for setting aside the ex parte decree. In the circumstances of this case. I do not think any reason to disbelieve the D.G.C. (R.). The application is within time. 12. In view of the above, the revision is dismissed with costs and Rs. 50/- as counsel's fees.