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2000 DIGILAW 1210 (PAT)

Parshuram Pathak v. Shivkumari Kuer

2000-10-31

P.K.DEB

body2000
Judgment 1. This revision petition has been preferred against the order dated 19.8.1999 passed by Sub-Judge, Ist, Rohtas at Sasaram in Misc. case No. 57 of 1993 whereby the prayer made under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure of the Opposite parties had been allowed and the exparte decree passed on 31.5.1998 in Title Suit No. 268 of 1982 had been set aside and suit restored to file. 2. The above mentioned Title suit was filed by the petitioner against the father of the Opposite parties. During the pendency of the suit the father of the Opposite parties died and in his place his legal representatives the Opposite parties and a daughter Ramdulari Devi were substituted. According to the Opposite parties neither any notice nor summons were served on their predecessors or on substitution to the Opposite parties either through ordinary process or registered cover. There was no daughter of the original defendant Lakshman Lal in the name and style of Ramdulari Devi rather one of his daughters was Ram Kueri Devi who died prior to her father Lakshman Lal but her husband Mahendra Lal is still living. According to the Opposite parties they came to know of the exparte decree and the execution thereof from one Nand Kishore Singh a Tayeed of the Court and then after taking all informations through information slip filed the petition under Order 9 Rule 13 of the Code of Civil Procedure which was registered as Misc. case No. 57 of 1993. On three grounds the exparte decree was challenged(i) There was no service of summons either through ordinary process or through registered post (ii) There was no substituted service and the gazette publication did never reach the interior village Garaiya where the Opposite parties live (iii) The exparte decree was passed against a dead person. The petition as hotly contested by the petitioner. His contention was that in the original suit was filed summons were served on Lakshman Lal but on refusal service was made by hanging. Registered summons were also accepted as served on refusal. There was also gazette notification against the original defendant. The petition as hotly contested by the petitioner. His contention was that in the original suit was filed summons were served on Lakshman Lal but on refusal service was made by hanging. Registered summons were also accepted as served on refusal. There was also gazette notification against the original defendant. On his death the heirs had also been served with notice similarly and that the Opposite parties had got knowledge of the suit long back and they were practically watching the proceeding and when delivery of possession was being issued the petition for restoration of the suit was filed. Regarding the death of the daughter and the decree being passed against a dead person no denial has been made in the objection filed. 3. Both parties adduced oral and documentary evidence and the learned court below closely scrutinising the oral and documentary evidence came to the finding that the decree was passed against a dead person. That notices were never served personally either on the original defendant or heirs and, as such, the restoration petition was allowed with a cost of Rs. 500/-. 4. During the course of argument before this Court learned counsel for the Opposite parties has contended that this revision petition is not maintainable as the petitioner has already accepted the cost of Rs. 500/- and that the suit has been revised and it has reached advance stage of trial when settlement of issues have already been made. Regarding this submission learned counsel for the petitioner has submitted that he has no knowledge about such things and when by filing affidavits such statement has not been made the same cannot be relied on. 5. Petition filed under Order 9 Rule 13 C.P.C. should always be construed liberally and if on the face of the record it should be found that defendant has been debarred for sufficient cause from appearance then there is no scope of scrutiny of such ground on narrow and technical approach. In this connection a recent judgment of the Apex Court as reported in (2000) 3 S.C.C. 54 (G.P. Srivastava V/s. R.K. Raizada) may be relied on. In this connection a recent judgment of the Apex Court as reported in (2000) 3 S.C.C. 54 (G.P. Srivastava V/s. R.K. Raizada) may be relied on. Regarding the decree passed against a dead person there was no denial before the court below and it appears that Ram Dulari Devi and Ram Kueri Devi whoever might be being daughter of original defendant Lakshman Lal died before the suit was filed and to that effect postal peons report was there on the record but that has never been considered either by the court below or from the side of the petitioner. Mr. Dwivedi, Senior counsel appearing for and on behalf of the petitioner submits that daughter if pre-deceased of the original defendant was not a necessary party to the suit and her husband was never a successor and in that way even if decree was passed against the deceased daughter then also such exparte decree cannot be said to be illegal and inoperative whether the daughter inherited or not or on her death and husband was a legal representative or not was a matter to be considered in suit, but on the face of the record on the date the exparte decree was passed it was passed against a dead person. So on this score the finding of the learned court below is proper and just and nothing is to be interfered with. That there was no personal service on the original defendant or his successors is there on the face of the record. Summons of ordinary process were said to be served on hanging in presence of the witnesses on refusal by the defendant but the witnesses who had allegedly signed on such service reports had totally denied about such factum. In that way it cannot be said that there was proper service of summons. Postal peon has not been examined and this refusal as endorsed by that postal peon might be admitted without examination of the postal peon but on the face of the other evidence such endorsements of refusal is shrouded with doubts. Regarding knowledge of the suit by the Opposite parties could not be proved or shown from the side of the petitioner. Regarding publication in official gazette there is no iota of evidence from the side of the petitioner that such gazette was available in the remote village where the Opposite party reside. Regarding knowledge of the suit by the Opposite parties could not be proved or shown from the side of the petitioner. Regarding publication in official gazette there is no iota of evidence from the side of the petitioner that such gazette was available in the remote village where the Opposite party reside. It is also in evidence that at least one of the substituted defendants was residing outside his house and was in service. Thus the service on refusal both in ordinary process and registered post in proper and correct address could not be proved from the side of the petitioner. 6. Although there is no scope of this court under revisional jurisdiction to reappreciate the evidence but still on the basis of the submissions made for and on behalf of the petitioner this Court had gone through evidence recorded and could find that the learned court below had come to the just and proper finding on the basis of the materials on record. Learned court below neither mis-read nor mis-interpreted the evidence on record and hence there is no scope to interfere with the finding of the court below under revisional jurisdiction as contemplated under Section 115 of the Code of Civil Procedure. 7. The revision petition is thus, rejected having no force.