B. BHATTACHARYA, J. ( 1 ) THIS revisional application is at the instance of tenant / defendant in a suit for eviction and is directed against order dated July 23, 2001 passed by the learned Civil Judge, Senior Division, 2nd Court, Barasat in Misc, Appeal No. 137 of 1997 thereby affirming order No. 41 dated June 19, 1997 passed by the learned Munsif, 3rd Court, Sealdah in Misc. Case No. 17 of 1990. ( 2 ) THE opposite parties filed a suit being Title Suit No. 503 of 1986 against the petitioner on the ground of default in payment of rent. Ultimately, the said suit was decreed ex parte on December 21, 1987. ( 3 ) LONG thereafter, on March 2, 1990 the present petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said ex parte decree on the ground of non-service of summons. The said application gave rise to Misc. Case No. 17 of 1990. ( 4 ) THE case made out by the petitioner in the application under Order 9 Rule 13 of the Code was that no summons was ever served upon him and from the 'local whisper' he came to know that the opposite party/landlord had obtained an eviction decree against him. Immediately thereafter he rushed to the Court and contacted the learned advocate who filed an information slip and came to know on February 26, 1990 that the opposite party obtained the said ex parte decree. It may not be out of place to mention here that the said application was verified by the petitioner on February 26, 1990 but was actually filed on March 2, 1990. It may further be noted that in paragraph 3 of the typed petition, the date of knowledge viz. February 26, 1990 was inserted by hand and it was not typed. ( 5 ) ULTIMATELY, the learned trial Judge on contested hearing by order dated June 19, 1997 dismissed the application under Order 9 Rule 13 of the Code holding that summons was duly served upon the petitioner as would appear from the signature of the petitioner on the A/d card.
( 5 ) ULTIMATELY, the learned trial Judge on contested hearing by order dated June 19, 1997 dismissed the application under Order 9 Rule 13 of the Code holding that summons was duly served upon the petitioner as would appear from the signature of the petitioner on the A/d card. The learned trial Judge himself compared the signature of the petitioner appearing on the A/d card with the signatures appearing on Vakalatnama, application under Order 9 Rule 13 of the Code and on an earlier A/d card which came back in connection with service of notice under section 13 (6) of the West Bengal Premises Tenancy Act. ( 6 ) BEING dissatisfied, the petitioner preferred a Misc. Appeal before the learned first appellate Court below and by the order impugned in this application the said Court has affirmed the order passed by the learned trial Judge. ( 7 ) BEING dissatisfied, the defendant has filed the instant revisional application under section 115 of the Code of Civil Procedure. ( 8 ) AFTER hearing Mr. Roychowdhury appearing on behalf of the petitioner and Mr. Ghosh appearing on behalf of the opposite parties and after going through the materials on record I find that both the Courts below on consideration of the evidence on record disbelieved the case of the petitioner that summons was not served upon him. Both the Courts below by comparing the signature appearing on the A/d card with the admitted signature of the petitioner on the Vakalatnama and on the application under Order 9 Rule 13 of the Code came to the conclusion that those were identical. After going through the evidence on record I find that all that was stated by the petitioner in his evidence was that no summons was served upon him. In examination-in-chief he did not even say anything about the genuineness of the signature appearing on the A/d card in connection with the service of summons. However, in cross-examination when attention of the petitioner was drawn to the said signature he denied the same. Under such circumstances, if both the Courts below have disbelieved the evidence of the petitioner, this Court sitting in revision should not re-appreciate the evidence on record.
However, in cross-examination when attention of the petitioner was drawn to the said signature he denied the same. Under such circumstances, if both the Courts below have disbelieved the evidence of the petitioner, this Court sitting in revision should not re-appreciate the evidence on record. The question of service of summons being basically a question of fact, there is no scope of interference with such concurrent findings of fact within the narrow scope of section 115 of the Code of Civil Procedure. ( 9 ) MR. Roychowdhury, the learned senior counsel appearing on behalf of the petitioner however by relying upon a Division Bench decision of this Court in the cases of Parimal Kumar Guha v. Smt. Sovana Sinha reported in 1983 (I) CLJ page 237, contended that in this case the summons by registered post was issued not from the Court but by the plaintiffs themselves and the registration receipt was filed before Court. Under such circumstances, Mr. Roychowdhury submits that the Division Bench in the aforesaid case having deprecated such practice, this Court should ignore such service of summons. ( 10 ) THERE is no dispute that in the said case the Division Bench deprecated the practice of permitting the plaintiff to post the summons and advised the Courts to send the same through its own officers. In the said case, summons was posted from Elgin Road Post Office at the instance of the plaintiff and was returned with the endorsement refused on the next day. In the instant case no allegation of grand and collusion has been made by the petitioner either in the application under Order 9 Rule 13 of the Code or in evidence against postal authority. Therefore, although there is some irregularity on the part of the Court in permitting the plaintiff to send the summons but for that reason the service cannot be ignored. ( 11 ) MR. Roychowdhury further contends that the Courts below should not have compared the signature of the petitioner appearing on the A/d card with the admitted signature of the petitioner appearing on the Vakalatnama or on the application under Order 9 Rule 13 of the Code but ought to have taken aid of an expert. In my view, for the aforesaid reason the findings recorded by both the Courts below cannot be set aside.
In my view, for the aforesaid reason the findings recorded by both the Courts below cannot be set aside. No doubt it is advisable that the Court should take assistance of an expert if the party disputing his signature applies before this Court for appointment of such expert but in the instant case the petitioner did not pray for examination of his signature by an expert and under such circumstances the Court did not commit any illegality in exercise of its power under section 73 of the Evidence Act. It is now settled law that Court is the expert of the experts and thus in the absence of any prayer for appointment of expert by the petitioner, the Court rightly compared the signatures. (See Murarilal v. State of M. P. AIR 1980 SC 531 ). I have already indicated that there is no allegation against postal authority of any fraud or collusion. ( 12 ) APART from the aforesaid fact I find that in the body of the application under Order 9 Rule 13 the petitioner in paragraph 3 has incorporated the date of acquiring knowledge of ex parte decree as February 26, 1989. From the information slip, filed before the Court, it appears that although the application for information slip was received on February 24, 1990 and in column 4 it was mentioned that the same would be ready on February 26, 1990 but actually the information was given on February 28, 1990 from the Court as would appear from column 6. Therefore, on February 26, 1990 when the application was verified by the petitioner he could not know about the passing of ex-parte decree, as the Court itself informed such fact to the petitioner on February 28, 1990. Therefore, it is apparent that plaintiffs had all along knowledge of the ex-parte decree but the filing of information slip was just an 'eye-wash'. In evidence the petitioner stated that he got vague information of the ex-parte decree from one P. B. Laha but the date of giving such information was not disclosed and even the said P. B. Laha was not examined. ( 13 ) THUS, I find that the learned Courts below in the fact of such a case rightly disbelieved the evidence of the petitioner and I do not find any reason to come to a different conclusion from the aforesaid material.
( 13 ) THUS, I find that the learned Courts below in the fact of such a case rightly disbelieved the evidence of the petitioner and I do not find any reason to come to a different conclusion from the aforesaid material. It is now settled law that even if from the selfsame material a different conclusion can be arrived at, such fact is no ground of interference in revision unless it is shown that the findings of the learned Courts below are either based on no evidence or no reasonable individual would come to such finding from the materials on record. Such is not the case before us. I thus find no reason to interfere with the orders passed by the learned Courts below. This revisional application is thus dismissed. In the facts and circumstances of this case there will be however no order as to costs. Application dismissed