Sagar Mallick v. Saraswati Dutta — 1987 DIGILAW 311 (CAL)

JUDGMENT 1. THE present Revisional Application is directed against an appellate order dated -27th January, 1987 passed by the learned Additional District Judge, 5th Court, Alipore in Misc. Appeal No. 583 of i985, affirming order no. 24 dated 12th of July, 1985 passed by the learned Munsif, 4th Court, Alipore in Misc. Case No. 6 of 1981. 2. THE plaintiff/opposite party instituted a suit against the present petitioner and proforma opposite parties 2 to 7 for ejectment of the defendants in the said suit from the tenanted premises being 2 3/d, Telia Para road, Calcutta-25, which was registered and numbered as Title Suit No. 433 of 1977, inter alia, on the grounds of defaults in payment of rent for the months of January, February, March, 1975 and thereafter since april, 1977 onwards. The suit was decreed ex -parte on 21. 6. 1979. It seems as. in another earlier suit instituted by the said plaintiff against the defendants on the ground of default, the defendants had obtained benefit of avoiding a decree by complying with the terms of sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act. The genesis of the present dispute commenced since the said decree had been, passed. On 14. 2. 1981 the present petitioner filed am application under Order 9, Rule 13 read with Section 151 of the Code of Civil Procedure for recalling of the said ex parte decree, inter alia, contending therein that no summons in the said suit had been served on the petitioner prior to passing of the ex parte decree about which he came to know, from one of his sisters on 10th. of February, 1981 and upon causing inspection of the records of the eviction suit it transpired that on the basis of a declaration in purported compliance with the provisions of Order 5 Rule 19a of the Code of civil Procedure the hearing of the suit had been fixed ex parte and the same ended with the ex parte ejectment decree as mentioned above. The tenant/defendant, in the said application under Order 9 Rule 13/151 of the Code of Civil Procedure, contended that the period of limitation should be. counted not from the date of passing of the decree but from the date of knowledge of the defendant/applicant in terms of Article 123 of the Limitation Act. The tenant/defendant, in the said application under Order 9 Rule 13/151 of the Code of Civil Procedure, contended that the period of limitation should be. counted not from the date of passing of the decree but from the date of knowledge of the defendant/applicant in terms of Article 123 of the Limitation Act. Though by way of abundant caution the absence of knowledge was pleaded on behalf of the defendant/appellant as a ground for condonation of delay, if there was any, by filing application under section 5 of the Limitation Act on 18th March, 1981, the trial court, by the, impugned order No. 24 referred to above, dismissed the application under Section 5 of the Limitation Act substantially holding that there was service of summons on the defendant/applicant of the suit and a such the period of limitation con the date of filing of the application under order 9 Rule 13/151 of the Code of Civil procedure had expired. The trial court, on the basis of the aforesaid finding, rejected the application under Order 9 Rule 13/151 of the Code of Civil Procedure also by the impugned order. An appeal was taken against such rejection being Misc. Appeal No. 583 of 1985, which, as stated above, was dismissed by the learned Additional District Judge, 5th Court, Alipore by the impugned appellate order.- Appearing in support of the application, Mr. Roy Chowdhury has strongly contended that the courts below having fallen into error in deciding the question of limitation, on which the impugned orders are founded, the same are liable to be interfered with in revision. According to Mr. Roy Chowdhury, it appears that the declaration in terms of Order 5 Rule 19a of the Code of Civil Procedure is the only material on which the finding of the courts below about service of summons on the defendants having been made in the suit is based. According to Mr. Roy Chowdhury, it appears that the declaration in terms of Order 5 Rule 19a of the Code of Civil Procedure is the only material on which the finding of the courts below about service of summons on the defendants having been made in the suit is based. Such declaration, upon a proper consideration, cannot be sustained in law - first because the statutory pre-conditions, namely, simultaneous issue of summons in terms of the earlier provisions of Rules 9 to 19 of Order 5 as envisaged under sub-rule (l)of Rule 19a of Order 5 of the Code of (Civil Procedure had not been fulfilled rendering the provisions of sub-rule (2) of Order 5 Rule 19a totally applicable, and secondly, because, even waiving the aforesaid pre conditions, there having been no refusal in the strict sense of the terms, declaration in terms of sub-rule (2) of Rule 19a of Order 5 was untenable. In developing that the postal imbursement 'not claimed' as made on the registered cover regarding the present petitioner could not be equated with refusal specially in view of the peculiar procedure of handing over the summons to the party (plaintiff) for being sent by registered post and accepting the postal receipt filed by the plaintiff subsequently having been. allowed to be followed by the court a practice which, has been severally condemned by pronouncement of Division Bench of this Court in 983 (1) CL3 237 and this lacuna in complying with the conditions laid down order 5 Rule 19a of the Code of Civil Procedure cannot be cured a subsequent finding by the lower appellate court, as has been made the instant case, disbelieving the plea of the present petitioner of siding out of the disputed premises at the time the summons of the it is alleged to have been served on him. Mr. Roy Chowdhury has further sailed the finding of the court below that this case of the present petitioner about his first knowledge about the ex parte decree having been arrived from one of his sisters was not sustainable in the context of the davit filed by the said sister. According to Mr. Roy Chowdhury, on application of the principles laid down in 15cwn 399 (403) such reliance the affidavit of the sister is not permissible in law. 3. MR. According to Mr. Roy Chowdhury, on application of the principles laid down in 15cwn 399 (403) such reliance the affidavit of the sister is not permissible in law. 3. MR. Sundarananda Pal, appearing on behalf of the contesting plaintiff/opposite party, has contended that the finding made by the court appeal below about the defendant/petitioner having been served with summons on the basis of a declaration made in terms of Order 5, Rule of the Code of Civil Procedure being a finding of fact is not open to scrutiny of this court in Revisional Jurisdiction even if the same is erroneous in law. According to Mr. Pal, the facts of the present proceeding unequivocally point out that the same is aimed at delaying execution of the, ejectment decree. In this connection, Mr. Pal has strongly emphasized the earlier attempts for reopening the decree made by the sister of the petitioner and the manner in which the same had been abdicated. According to Mr. Pal, even if the petitioner succeeds in convincing this court to interfere with the impugned order, such relief should not be granted to him because of his conduct in continuing to occupy the suit premises without payment of anything whatsoever by way of occupation charges for the same and approximately a sum of Rs. 6,500/- (Rupees six thousand five hundred only) would be the liability of the petitioner on this account. Mr. Pal in support of his contention that the court was justified in treating the endorsement 'not claimed' as refusal within the meaning of Order 5 Rule 19a (2) of: the Code of Civil Procedure has relied on the principles laid down in the Division Bench decision of this Court reported in 70 CWN 6 76 (6 78) and another decision reported in 82 CWN (306. 4. ADMITTEDLY by the impugned order the trial court refused to certain the application of the defendant/petitioner under Order 9 Rule of the Code of Civil Procedure on the ground that the same w filed within 30 (thirty)- days from the date of the ex parte decree in so summons of which had been taken to have been served on the defends petitioner Though the order of the trial court did not clearly indicate the reasoning but it gave sufficient indication when it recorded a finding that the statement of the defendant / petitioner of staying at premises no. 162/38, Lake Gardens, was not believable and in that context the postal endorsement 'not claimed' was taken to be tantamount to refusal. The appellate court has elaborately dealt with the matter and has indicated clearly the reasonings on which such a finding of service having been effected on the defendant/petitioner can be sustained. I am, however, of the view that Order 5 Rule I9a, on its terms does only provide an additional mode of service to enable the court to grant a declaration but cannot be interpreted to have provided for an alternative and independent mode of service. In the instant case, admittedly, the summons was not tendered/served on the date the acknowledgement with the postal endorsement, on the basis of which the impugned declaration of service had- been made, came back (vide order No. 13 dated 18. 4. 78. Moreover, the registered cover had been posted, as it appears from the extract of Order sheet produced, by the plaintiff and not by court but the postal receipt was permitted to be filed in the records of the case (vide order no. 11 dated 14. 3. 78. This practice of issuance of registered notice through a party and not through office of the court has been deprecated as argued and noted above by pronouncement of this court. Reference may be made to the case of P. Guha v. Smt. S. Guha, reported in 1933 (1) CLJ 2 37. In the aforesaid state of affairs, I am of the view that summons on the defendant/petitioner had not been duly served and the period of limitation was required to be judged in terms of the second limb of Article 123, namely, within 33 (thirty) days from the date of knowledge of the decree. The court of appeal below, therefore, was not justified in affirming the view of the trial court that the Application under Order 9 Rule 13/151 of the Code of Civil Procedure was- barred by limitation which it found to have started running from the date of ex parte decree. In my view, the sister's affidavit, as argued by, Mr. Roy Chowdhury, cannot be relied upon. In my view, the sister's affidavit, as argued by, Mr. Roy Chowdhury, cannot be relied upon. The said application, accordingly, is required to be reconsidered on merit and that is also the reason for which I do not propose to deal in details with the merits of other contentions raised by the respective counsel for the parties so that the trial court may decide the same freely. In the result, I set aside the impugned order and direct the trial court to reconsider the application under Order 9 Rule 13/151 of the code of Civil Procedure, made an behalf of the defendnt / petitioner, on merit in accordance with law in the light of the observations made in this judgment but on condition that the defendant/petitioner deposits, in the court below, a sum of Rs. 2,000/- (Rupees two thousand only) without prejudice to the rights and contentions of the parties within four weeks from date. The trial court should endeavour to dispose of the application above within eight weeks from the date of communication of this order to the said court. The order should be communicated forth-with. I make it clear, however, that in the event the petitioner fails to deposit the sum of Rs. 2,000/- Rupees two thousand only) as directed above, the instant Revisional application will stand dismissed. Costs will abide by the results of the application under order 9 rule 13/151 Code of Civil Procedure. Order set aside.