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2000 DIGILAW 523 (PAT)

Bisheshwar Nath Choubey v. Murti Shri Ramji

2000-04-03

CHOUDHARY, S.N.MISHRA

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ORDER Defendant no.1 is the petitioner in this Civil revision application which arises out of an order dated 24.5.1999 passed by the Vth Addl. District Judge, Arrah in Misc. Appeal No. 51 of 1990 affirming the order dated 2.6.1990 passed by the 2nd munsif, Arrah, in Misc. Case No. 27 of 1986, whereby he refused to set aside the exparte decree passed in Title Suit No. 154 of 1985. Learned Counsel for the petitioner has challenged the orders of the Court below mainly on the ground that no summons had been served upon the petitioner and the Plaintiff by playing fraud upon the Court, got the ex-parte decree. In opposition, however, learned counsel submits that summons has been duly served upon the defendants and in fact, one -of the defendants had appeared but did not contest the suit. Admittedly, defendant no.12 appeared in the suit and had accepted the claim of the Plaintiff. It appears from the materials available on record that summons issued against defendant no.1 was received by his sister Asha Mishra, that apart registered notice issued to defendant no.1 has been received by the defendant no.1 himself, which is apparent from the acknowledgment due which is on the record. In this case, the postal peon had been examined on behalf of the Plaintiff who has stated on oath that defendant no.1 had himself signed on the acknowledgment due. Since the signature on the AID was denied by the defendant no.1. Subsequently, the said signature was sent for handwriting expert who was examined on behalf of the Plaintiff. He has categorically stated that the admitted signature as well as the signature appearing on the Acknowledgment Due is of the same person. The Court below on going through the materials on record, both oral and documentary, has come to the conclusion that both summons as well as registered notice had been served upon the defendant no.1 even then he did not appear though one of the defendants appeared in the suit and accepted the claim of the plaintiff. Learned Counsel for the petitioner then submitted that the ex-parte hearing of the suit can only be taken when defendant failed to appear when the suit was called out for hearing. Learned Counsel for the petitioner then submitted that the ex-parte hearing of the suit can only be taken when defendant failed to appear when the suit was called out for hearing. Learned Counsel further submitted that before fixing the case for ex-parte hearing of the suit, the Court must record a finding to the effect that summons had been duly served upon the defendant. In support of his contention, learned counsel has relied upon a decision in the case of Daroga Singh-Vrs-Amin Mian reported in AIR 1983 Pat 102 and 1987 BLJ 19 (Mahabir Prasad-Vrs-Abhay Chandra Gupta). In opposition however, Mr. Jha, submits that in the instant case it has been held by both the Courts below that both summons as well as registered notice had been duly served upon the defendants after having examined the witnesses including the postal peon and as such this Court sitting in its revisional jurisdiction cannot interfere with the said findings, which are based upon the correct appraisal of the evidence, both oral as well as documentary, available on the record. In support of his contention learned counsel for the opp. parties has relied upon a decision in the bass of Mostt. Bhabhia Devi-Vrs-Parmanand Prasad Yadav reported AIR 1997 S.C. 1919 . Admittedly in this case apart from summons, a registered notice• was also issued which has been received by defendant no.1 himself and this fact has been supported by the postal peon who has been examined as witness on behalf of the plaintiff. The signature appearing on the Acknowledgment Due was found of the defendant no.1 on examination of the disputed signature, by the handwriting expert. When defendant no.1 failed to appear even after service of notice, the court has rightly fixed the case for ex-parte hearing. From perusal of the lower court records, it appears that the court was satisfied that the notice has been duly served upon Defendant no.1. After having heard the learned counsel for the parties and going through the materials on record including the order under challenge, I do not find any illegality much less jurisdictional error in the order impugned. Accordingly, this civil revision application is dismissed.