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1998 DIGILAW 311 (PAT)

Wakil Bhagat v. Rambriksh Bhagat

1998-04-10

M.Y.EQBAL

body1998
JUDGMENT M.Y. Eqbal, J. This civil revision application is directed against the judgment and order, dated 2nd of March, 1996, passed by the 2nd Additional District Judge, Muzaffarpur, in Miscellaneous Appeal No. 11 of 1989, whereby the learned Additional District Judge, after hearing the parties, dismissed the appeal and affirmed the order, dated 4.2.89 passed by the learned Munsif, Muzaffarpur (west) in Misc. Case No. 21 of 1986 rejecting the application of the defendant-petitioner, under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code). 2. The facts of the case are not much in dispute. The plaintiff-Opp. Parties 1 to 4 filed Title Suit No. 6 of 1986 in the court of Munsif, Muzaffarpur (west) on 15.1.86 for declaration of title and confirmation of possession over the suit property, which consists of land and building. Summons of the suit was served on the defendant on refusal and the trial court heard the suit ex parte and passed separate decree on 16.7.86. Just on the next day i.e. 17.7.86, the defendant petitioner filed an application under Order IX Rule 13 of the Code for setting aside the ex parte decree on the ground that the summons or notice of the suit was neither served on him or he had any knowledge about the institution of the suit and hearing of the suit ex parte. The learned Munsif, after hearing the parties and after considering the evidences - both oral and documentary-came to the conclusion that the summons and notice of the suit was duly served upon the defendant and he had knowledge about the institution of the suit. The petitioner then moved in appeal before the District Judge by filing a miscellaneous appeal, which was eventually transferred to the court of Additional District Judge, Muzaffarpur. The appellate court affirmed the order of the learned Munsif and dismissed the appeal. Hence, this civil revision application. 3. Learned counsel, appearing for the petitioner, firstly, submitted that there is no service of summons or notice of the suit on the defendant-petitioner as the defendant never refused to receive notice or summons. In fact, the plaintiffs, in connivance with the postal peon and the civil court peon, got an endorsement of refusal on the service reports, and on that basis the ex parte decree was passed. In fact, the plaintiffs, in connivance with the postal peon and the civil court peon, got an endorsement of refusal on the service reports, and on that basis the ex parte decree was passed. Learned counsel further submitted that the trial court proceeded so hurriedly in the disposal of the suit by passing the ex parte decree that the petitioner could not get reasonable opportunity of being heard. On the other hand, learned counsel, appearing for the Opp. Parties, submitted that service of summons on the defendant has been sufficiently proved by examining witnesses including civil court peon and postal peon who had served the summons/notice and had made endorsements of refusal on the service reports. The learned counsel further submitted that the petitioner had knowledge about the institution of the suit and the date fixed in the suit for ex parte hearing. 4. After having gone through the judgment and order passed by both the courts below, I find that the plaintiffs-opp. parties have led evidence in support of service of summons. But the fact remains that the summons was accepted as valid service on refusal. I have occasion to go through the order sheets of Title Suit No. 6 of 1986, which has been produced before me by the learned counsel, appearing for the petitioner. From perusal of the ordersheets of different dates, it appears that when the peon of the civil court submitted the report about the service of notice on refusal, the plaintiffs were directed to file an affidavit. The plaintiffs filed an affidavit on 22.3.86. The order-sheet, dated 22.3.86 reads as : "Baadi Hajiri dete hain. Baadi Tamila ki pushti mein shapath patra dete hain. Nibandhit sumon tamila hokar prapta hua. Dinank 4.4.86 ko Baad ki sunwaai hetu prastut karein." 5. It is evident from the aforesaid order that the court has not recorded its satisfaction about service of summons nor the court has said anything about the service of summons returned with the endorsement of refusal. Normally, in a suit, when the court accepts the service of summons or notice, then the suit is adjourned for filing written statement. Instead of doing that, the trial court adjourned the suit for hearing. From a perusal of the order, dated 24.6.96, it appears that the trial court has passed the following order: "The plaintiff files Hajri. Case called out for hearing. Instead of doing that, the trial court adjourned the suit for hearing. From a perusal of the order, dated 24.6.96, it appears that the trial court has passed the following order: "The plaintiff files Hajri. Case called out for hearing. The learned lawyer of the plaintiff appears along with plaintiff. None turns up on behalf of the defendant in spite of repeated calls. The case is fixed for ex parte hearing on 25.6.86." 6. From the aforesaid order, it is manifest that the procedure adopted by the trial court is not in consonance with Order IX Rule 6 of the Code. The correct procedure, which should have been adopted by the court below, was to record satisfaction about the service of summons and then to post the case for ex parte hearing, if not for filing the written statement. Moreover, one day adjournment by the court for ex-parte hearing was not proper. 7. Be that as it may, the plaintiff-opp. parties although adduced evidence to prove that summons issued was served on refusal, but if the impugned orders passed by the courts below are allowed to stand, it would cause serious injury and/or prejudice to the defendant-petitioner inasmuch as in an ex-parte decree, the right, title, interest and possession of the parties in respect of immovable property has been declared. Although knowledge of the institution of the suit and passing of the ex-parte decree cannot be ruled out, but for the ends of justice, it would be proper if the parties should get contested decree from the court. At the same time, since the plaintiffs have been harassed for more than a decade, they are entitled to be compensated in the event the ex-parte decree is set aside. 8. After considering the entire facts and circumstances of the case, I am of the opinion that the impugned orders passed by the courts below are liable to be set aside. In the result, this civil revision application is allowed and the ex-parte decree by the courts below is set aside subject to payment of costs of Rs. 5,000/- (five thousand) only by the defendant to the plaintiff. In the result, this civil revision application is allowed and the ex-parte decree by the courts below is set aside subject to payment of costs of Rs. 5,000/- (five thousand) only by the defendant to the plaintiff. It is made clear that if the defendant-petitioner deposits the costs in the trial court within six weeks from today, the trial court shall give two weeks' time thereafter to the defendant for filing the written-statement and on filing of the written-statement, the court shall frame issues and proceed with the trial and conclude the same within three months thereafter.