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2002 DIGILAW 117 (GAU)

Mehboob Hussain v. Abul Hussain

2002-03-13

AMITAVA ROY

body2002
AMITAVA ROY, J. — This revision petition has been directed against the judgment and order dated 18.10.2001 passed by the learned Civil Judge (Senior Division) No. 3 at Guwahati in Misc. Appeal No. 22 of 2001 dismissing the said appeal and upholding the order dated 4.8.2001 passed by the learned Civil Judge, (Junior Division) No. 1, Guwahati in Misc. (J) Case No. 38/2001 arising out of Title Suit No. 87/76 (re-numbered as Title Suit No. 71/90). The Misc. (J) Case No. 38/2001 was filed by the present revision petitioners for setting aside the ex-parte decree dated 22.9.97 passed in the above mentioned title suit decreeing the same in favour of the opposite party plaintiff. 2. I have heard Mr H.K. Deka, learned counsel for the petitioners and Mr S. Medhi, learned counsel for the opposite party. 3. Considering the question to be answered in the present revision petition, a brief reference to the facts culminating in the filing of the present revision petition would be necessary. The Us between the parties started with a suit being Title Suit No. 87/76, filed by the present opposite party against Shri Meer Hussain, the predecessor in interest of the present petitioners and two others praying for a decree for a declaration of the plaintiffs title and possession over land described in Schedule-A to the plaint and also for the defendant No. 2 and 3 from the land described in Schedule-B and Schedule-C to the plaint respectively. It would be relevant to mention herein that Meer Hussain was impleaded as defendant No. 1 in the suit. During the pendency of the suit the defendants Nos. 2 and 3 compromised with the plaintiff and the suit thereafter proceeded only against Meer Hussain, defendant No. 1. While the suit was pending before the learned trial Court i.e. Court of the Assistant District Judge No. 1 at Guwahati. Meer Hussain expired and was substituted in the suit by his heirs and legal representatives i.e. his wife and the present revision petitioners. The suit in the meantime had been transferred to the Court of the Assistant District Judge No. 2, Guwahati and was re-numbered as Title Suit No. 71/90. The suit was next transferred to the file of Munsiff No. 1, Guwahati (lateron designated as Civil Judge, Junior Division No. 1, Guwahati) for disposal. The suit was eventually decreed ex-parte on 22.9.97. 4. The suit was next transferred to the file of Munsiff No. 1, Guwahati (lateron designated as Civil Judge, Junior Division No. 1, Guwahati) for disposal. The suit was eventually decreed ex-parte on 22.9.97. 4. It was thereafter on 25.1.2001, the present revision petitioners filed an application under Order 9 Rule 13 CPC read with Section 151 of the Code before the learned trial Court praying for setting aside the ex-parte decree dated 22.9.97. In the said application they inter-alia took the stand that their predecessor in the interest, Meer Hussain, original defendant No. 1 died on 7.9.91 and that it appeared from the order sheet that they were substituted in his place by order dated 26.8.93, Their categorical plea is that at. no-stage of the suit, summons were served on them and they remained in dark about the same and that is how the suit was eventually decreed on 22.9.97. They asserted that it was only on 31.12.2000, when the opposite party armed with 20/25 labourers entered into the suit land and started forcefully to erect torja fencing that they came to learn about the ex-parte decree from them. Their further case is that thereafter some more time was consumed in searching the case records and ultimately the application was filed. They also pleaded that the petitioner No. 3 was a minor at the time of the death of the original defendant No. 1 and though it appeared from the records that he too was substituted in place of the deceased-defendant, no guardian was appointed to represent him. This application was registered as Misc. (J) Case No. 38/2001. 5. The present opposite party filed a written objection to the said application contending inter-alia that the same was barred by limitation. While denying the correctness of the stand of the revision petitioners that they had not been served with the summons in the suit, the opposite party contended that on the death of the original defendant No. 1, all his heirs including the revision petitioners were substituted in the suit and the substituted heirs were represented by their learned counsel in the suit. He also denied, the correctness of the statement that the revision petitioner No. 3 was at the relevant time, a minor. It was asserted in the written objection, that the revision petitioners had full knowledge of the suit at all the stages thereof. He also denied, the correctness of the statement that the revision petitioner No. 3 was at the relevant time, a minor. It was asserted in the written objection, that the revision petitioners had full knowledge of the suit at all the stages thereof. They denied the correctness of the stand of the revision petitioners that they had for the first time come to know about the decree only on 31.12.2000. In support of the statements made in the written objection the opposite party filed some documents including a Vakalatnama filed on behalf of all the heirs of the original defendant No. 1 including the revision petitioners in Title Execution Case No. 6/ 91, an application on their behalf in the said title execution proceeding and in an application filed by their learned counsel in Title Suit No. 71/90 on 21.1.95. 6. The learned trial Court,, after hearing the parties by order dated 4.8.2001 passed in the above misc. case rejected the same. 7. The revision petitioners thereafter filed ah appeal against the said order which was finally heard and disposed of by the learned lower appellate Court by the impugned judgment and order dated 18.10.2001, dismissing the appeal i.e. Misc, Appeal No. 22/2001 upholding the order dated 4.8.2001 passed by the learned trial Court. Hence this revision petition. 8. The revision petitioners have reiterated their stand as taken in the application under order 9 Rule 13 CPC mentioned herein above. They have contended further that the learned lower appellate Court had totally left out of consideration relevant facts, and several orders passed by the learned trial Court with regard to the service of summons on them in passing the impugned judgment and order. They further contended that the impugned judgment and order suffers from patent illegalities and is liable to be set aside. The opposite party has filed an affidavit-in-opposition in the present revision petition controverting the statements made in the revision petition and substantially reiterating their stand in the written objection filed by them before the learned trial Court opposing the prayer for setting aside the ex-parte decree. The opposite party has filed an affidavit-in-opposition in the present revision petition controverting the statements made in the revision petition and substantially reiterating their stand in the written objection filed by them before the learned trial Court opposing the prayer for setting aside the ex-parte decree. The opposite party before this Court also has annexed to his affidavit-in-opposition, the same set of documents in support of his contentions that the summons in the suit had been duly served on all the heirs of the original defendant No. 1 and that they had full knowledge and information about the suit at every stage thereof. 9. Mr Dekay learned counsel for the petitioners while drawing the attention of this Court to several orders passed by the learned trial Court namely orders dated 29.6.96, 3.8.96, 31.8.96, 16.9.96, 8.5.97 and 22.9.97, has emphatically argued that it is clear from the said orders that the summons on the revision petitioners had not been served and that the learned trial Court mechanically fixed the suit ex-parte for hearing by order dated 8.5.97 and eventually decreed the suit ex-parte on 22.9.97. He further argued that the learned lower appellate Court totally mis-read the above orders passed by the learned trial Court rejecting the application .of the revision petitioners for setting aside the ex-parte decree. He contended that it is clear on the face of records that summons in the suit had not been served on the revision petitioners and that it is evident from the orders dated 29.6.96 and 16.9.96 passed by the learned trial Court and therefore the learned lower appellate Court had committed a gross illegality in holding that the summons were duly served on the revision petitioners and in upholding the order dated 4.8.2001 passed by the learned trial Court. He has submitted that the impugned orders of the learned Courts below have resulted in gross-miscarriage of justice and that therefore it is a fit case where this Court in exercise of its revisional powers should interfere with the same. 10. Refuting the above submissions of Mr Deka, the learned counsel for the opposite party, Mr S. Medhi, has argued that the impugned orders of the learned Courts below are perfectly legal and valid in the facts and circumstances of the case. 10. Refuting the above submissions of Mr Deka, the learned counsel for the opposite party, Mr S. Medhi, has argued that the impugned orders of the learned Courts below are perfectly legal and valid in the facts and circumstances of the case. In supporting the said orders Mr Medhi has drawn the attention of this Court to several orders passed by the learned trial Court namely 26.8.93,25.11.94,2.1.95,21.1.95, 21.12.95,1.2.96,23.2.96,20.3.96,10.5.96, 31.5.96, 29.6.96, 16.9.96 and 8.5.97. Drawing the pin pointed attention of this Court to the order dated 21.1.95 passed by the learned trial Court, the learned counsel for the opposite party argued that the said order was passed on an application filed on behalf of the substituted defendants namely the heirs and legal representatives of the original defendant No. 1. He contended that it is clear from the said application that the revision petitioners and for that matter all the heirs and legal representatives of the original defendant No. 1 had been served with the summons in the suit and were fully aware of the pendency thereof. He has argued that all the heirs and legal representatives of the deceased-defendant were duly substituted in the suit on a prayer made on their behalf for the purpose and therefore the application filed for setting aside the ex-parte decree with the plea that the summons in the suit had not been served on them is not a bonafide one and was filed with the sole purpose of delaying the suit and frustrating the decree legally obtained by the opposite party. He has also relied on the provision of Order 5 Rule 1.6, 17, 18 19A(2) and 20 of the CPC, in support of his submission that in the facts and circumstances of the ease the summons had been duly served on the heirs and legal representatives of the original defendant No. 1 and that the learned lower appellate Court was fully justified in taking the said view and in passing the impugned judgment and order. Mr Medhi has also taken me through the documents filed along with the affidavit-in-opposition in the present civil revision petition in support of his above contentions. 11. I have carefully considered the rival contentions of the parties. Mr Medhi has also taken me through the documents filed along with the affidavit-in-opposition in the present civil revision petition in support of his above contentions. 11. I have carefully considered the rival contentions of the parties. In my considered opinion, it would be in the interest of justice, to have another look to the relevant orders passed by the learned trial Court in coming to a conclusion as to whether the summons in the suit had been served on the revision petitioners at the time when the learned trial Court by the order dated 8.5.97 had fixed the suit for ex-parte hearing against them. It transpires from the records that on the death of Meer Hussain, the original defendant No. 1, the revision petitioners along with their mother, the wife of the original defendant No. 1 were duly substituted in his place and therefore had the knowledge of the suit. The suit was dismissed by the learned trial Court by order dated. 2.6.95 rejecting the prayer of the plaintiff-opposite party for declaration of his right title, interest over the suit land. The opposite party thereafter preferred an appeal in the Court of the District Judge, Kamrup, Guwahati being Title Appeal No. 4/95. The learned lower appellate Court by judgment and order dated 28.11.95 set aside the impugned order and remanded the suit to the trial Court for fresh disposal after allowing the plaintiff an opportunity to adduce appropriate documentary proof in support of his claim. It was further observed "before hearing the matter, however, notices shall be issued to the substituted heirs of the original defendant No. 1." It is relevant to notice here that it transpires from the judgment that the respondents in the said appeal namely the heirs and legal representatives of the original defendant No. 1 were not represented. After the remand, the learned trial Court by order dated 19.1.96 directed that the defendants in the suit be notified about the pendency thereof fixing 1.2.96 for their appearance. After the remand, the learned trial Court by order dated 19.1.96 directed that the defendants in the suit be notified about the pendency thereof fixing 1.2.96 for their appearance. As would transpire from the subsequent orders 1.2.96,23.2.96, 20.3.96, 10.5.96, 31.5.96, 29.6.96 and 16.9.96, the learned trial Court, taking note of the report of the process server that the summons when tendered were refused to be accepted by the defendants, examined the process server and the witnesses and was finally of the opinion that the summons were not properly served upon the revision petitioners and directed the plaintiff-opposite party to take steps for service of summons on them by ordinary process as well as by registered post. By the order dated 16.9.96 the learned trial Court inter-alia observed that though summons were not served upon the defendants (revision petitioners) the suit had been in the meantime inadvertently fixed for hearing and that it was therefore expedient to wait for the service report. The orders passed thereafter from 15.11.96 to 27.3.97 disclose that service report was not received till then. However, on 8.5.97, the learned trial Court observed that summons upon the defendant No. 1 (b), l(c), l(d) appeared to have been served and as on that day they were without steps, it was ordered that the suit would proceeded ex-parte against them. Accordingly arguments were heard on 26.6.97. However, as in the meantime the presiding officer was transferred, fresh arguments were heard from the plaintiff side on 16.9.97 and the suit was decreed on 22.9.97. On a review of the above orders passed, though it can be safely concluded that the revision petitioners had the knowledge of the suit having been duly substituted in place of the original defendant No. 1 after his death, it cannot be said with absolute certainty that after the remand of the suit vide judgment and order dated 28.11.95 passed in Title Appeal No. 4/95 notices were duly served on them as directed by the learned lower appellate Court in the said appeal. This is more so, in view of the orders dated 29.6.96 and 16.9.96 passed by the learned trial Court. No reason has been recorded in the order dated 8.5.97 as to why, in the teeth of the orders dated129.6.96 and 16.9.96, it was concluded that summons on the revision petitioners had been served. This is more so, in view of the orders dated 29.6.96 and 16.9.96 passed by the learned trial Court. No reason has been recorded in the order dated 8.5.97 as to why, in the teeth of the orders dated129.6.96 and 16.9.96, it was concluded that summons on the revision petitioners had been served. I am therefore not in a position to persuade myself to hold that the notices in the suit had been served on the revision petitioners before the order dated 8.5.97 was passed fixing the suit for ex-parte hearing. 12. With regard to the documents filed along with the affidavit-in-opposition in the present revision petition, it is noticeable that the application dated 4.10.91 on behalf of the heirs and legal representatives of the deceased defendant is in Title Execution Case No. 6/85, the Vakalatnama on behalf of the substituted heirs is also dated 4.10.91 in the said execution proceedings. The order dated 8.10.91 substituting the heirs and legal representatives of the deceased defendant is also in the same proceeding. The application dated 21.1.95 on their behalf however is in Title Suit No. 71/90 i.e. in the present suit. While it is difficult to hold that the documents relating to the Title Execution Case No. 6/85 referred to above cm be taken to be sufficient evidence of the knowledge and information of the revision petitioners with regard to he present suit, the application dated 21.1.95, relates to a stage before the remand of the suit by the learned lower appellate Court vide order dated 28.11.95 passed in Title Appeal No. 4/95. There is no sufficient material on record to conclude that the proceedings in the execution case is between the same parties relating to the same land. There is also no dispute that the heirs and legal representatives of the original defendants were duly substituted and had knowledge of the suit till the suit was dismissed by the learned trial Court by order dated 2.6.95. There is nothing on record, however to hold that notices were served on the heris and legal representatives of the original defendants including the revision petitioners after the remand by the learned lower appellate Court. There is nothing on record, however to hold that notices were served on the heris and legal representatives of the original defendants including the revision petitioners after the remand by the learned lower appellate Court. I am therefore inclined to hold that notices in the suit were not duly served on the aforesaid heirs and legal representatives including the revision petitioners at the time when the order dated 8.5.97 was passed by the learned trial Court fixing the suit for ex-parte hearing. 13. Coming to the submissions of the learned counsel for the opposite party with reference to Order 5 of the CPC, suffice it to say that in view of the orders dated 29.6.96 and 16.9.96, it cannot be safely concluded that summons on the revision petitioners had been duly served in terms of the requirement of Order 5 Rule 17 and 19 of the CPC. The learned trial Court before passing the above mentioned orders applied its mind to the report and evidence of the process server as well as that of the witness regarding the service of summons as contemplated under Order 5 Rule 17 CPC. There is nothing on record to hold either that the learned trial Court was wrong in coming to its finding that summons/notices on the revision petitioners were not served. There is also nothing on records to conclude that after these orders were passed and before the order dated 8.5.97 was passed summons/notices were served on the revision petitioners. The learned lower appellate Court in coming to its finding that summons/notices were served on the revision petitioners, in my opinion, had missed this aspect of the matter. The contention of the learned counsel for the opposite party on this count therefore fails, On the same reasoning, the finding of the learned lower appellate Court that the revision petitioners had the knowledge of the hearing of the title suit and that the learned trial Court had rightly passed the order dated 8.5.97 that summons/notices upon them had been properly served is not acceptable to this Court. Mr Medhi, learned counsel for the opposite party in course of his arguments has drawn my attention to a decision tendered in Civil Revision No. 63/85 (on the death of Mustt. Nurun Nahar Zulquat Alt and others-Vs-Md. AbulHussain and another). Mr Medhi, learned counsel for the opposite party in course of his arguments has drawn my attention to a decision tendered in Civil Revision No. 63/85 (on the death of Mustt. Nurun Nahar Zulquat Alt and others-Vs-Md. AbulHussain and another). In support of his contention that as the revision petitioners had been duly served with the summons in the suit and had appeared and prayed for time to file written statement it cannot be said that they had no knowledge about the suit and therefore the learned lower appellate Court was perfectly justified in passing the impugned judgment and order. On a careful reading of the decision, I find that it is distinguishable on facts from the present case. In the case governed by the said decision the defendants, on receiving the summons had entered appearance in the suit and had prayed for time to file written statement and later on abandoned the same. There was no stage in their suit, as in the present one where the suit was once dismissed and the appellate Court had remanded the suit in appeal with a the direction for fresh disposal after issuing notices to the defendants. As noticed earlier it is at this stage, after the remand in the present case, that notices though directed to be served on the heirs and legal representatives of the original defendant No. 1 were not served as indicated in the orders dated 29.9.96 and 16.9.96 passed by the learned trial Court. The above decision therefore is not of much assistance to the learned counsel for the opposite party. 14. Another aspect of the matter cannot be lost sight of. The suit relates to an immovable property and the grievance of the revision petitioners is that on the strength of the ex-parte decree they are sought to be evicted from the suit land in their occupation. It would be therefore a grossly unjust and unfair to deny them an opportunity of contesting the suit on merits in the above facts and circumstances. There is nothing on record to show that the widow of the original defendant No. 1 is representing the interest of the revision petitioners in the suit so as to conclude that notice on heirs would tentamount to notice on the revision petitioners. There is nothing on record to show that the widow of the original defendant No. 1 is representing the interest of the revision petitioners in the suit so as to conclude that notice on heirs would tentamount to notice on the revision petitioners. Keeping in view the consequences that would follow if the ex-pate decree in the above facts and circumstances is sustained, it would be wholly unsafe to hold that as service of summons/notice of the widow of the deceased defendants was accepted, it would amount to acceptance of service of summons on the revision petitioners and consequently that the ex-parte decree would also be binding on them. From this point of view also, it cannot be held that summons/notices on the revision petitioners were served after the remand of the suit. 15. For the foregoing reasons, I am of the opinion that the impugned judgment and order of the learned lower appellate Court is liable to be set aside which I hereby do. As a corollary thereof the ex-parte decree dated 22.9.97 passed by the Civil Judge (Junior Division) No. 1, Guwahati in Title Suit No. 71/90 is set aside. The learned trial Court is directed to dispose of the suit after in-accordance with law. As the suit is of the year 1976, the learned trial Court would make every possible endeavour to dispose of the same as early as possible and in any case positively within a period of four (4) months from the date of receipt of the records. The office is directed to immediately send down the records to the learned trial Court. The parties are also hereby directed to appear before the learned trial Court on 26.3.2002 for taking further orders in the suit. With the above observations and directions the revision petition is allowed. There would be no order as to costs.