Research › Search › Judgment

Orissa High Court · body

2003 DIGILAW 130 (ORI)

Durgasankar Rath v. State Bank of India

2003-02-17

P.K.TRIPATHY

body2003
ORDER 17.2.2003 — Heard. 2. This Civil Revision has been filed by Defendant No.1 in Money Suit No.59 of 1989 of the Court to Sub-Judge, Boudh. He has challenged to the order of rejection of his application under Order 9 Rule 13, C.P.C. as per the impugned judgment dated 19.1.1994 in MJC No. 4 of 1993 of learned Sub-Judge, Boudh and the confirming judgment passed on 20.12.1996 by learned District Judge, Phulbani in Misc.Appeal No. 3 of 1994. 3. Opposite party No.1 instituted the suit for recovery of the outstanding loan amount of Rs.70.309.45 from the petitioner as the principal borrower and from his co-defendants (opposite parties 2 and 3 in the revision) as sureties/guaranters. Summons issued through process of the Court was refused to be received by the petitioner. Similarly, the co-defendants also refused to receive the summons. On due proof of service of the process the trial Court held the notice to be sufficient against each of the defendants. Since the defendants did not appear to contest the suit, therefore, each of them was set ex parte and after conduct¬ing ex parte hearing on 5.7.1990 judgment was delivered decreeing the suit ex parte. Thereafter, on January 30th, 1993 petitioner filed the application under Order 9 Rule 13, C.P.C. along with an application for condonation of delay on the ground that on 15.1.1993 he could know from one Ladukesar Mohapatra about the aforesaid ex parte decree. Thereafter, he applied for the certi¬fied copy and obtained the same on 16.1.1993 and filed the appli¬cation under Order 9 Rule 13, C.P.C. within 30 days from the date of knowledge. In the application under Order 9 Rule 13, C.P.C. petitioner stated that he had no knowledge of the institution of the suit and he was never offered with the summons and that such summons was probably suppressed to obtain an ex parte de¬cree. Plaintiff/Opposite party No.1 filed a counter denying to the allegation and contesting to the claim under Order 9 Rule 13, C.P.C. During the course of hearing of the MJC under Order 9 Rule 13, C.P.C. only oral argument was advanced. Plaintiff/Opposite party No.1 filed a counter denying to the allegation and contesting to the claim under Order 9 Rule 13, C.P.C. During the course of hearing of the MJC under Order 9 Rule 13, C.P.C. only oral argument was advanced. The Courts below found that when the summons issued to the petitioner was accepted as sufficient to on refusal, therefore, in the absence of proof that there was no such refusal, it cannot be said that he was not aware of pendency of the suit or about offering of notice. Ac¬cordingly, both the Courts below held that the cause advanced by the petitioner does not constitute sufficient cause to set aside the ex parte decree. 4. In course of argument Mr. Patnaik, learned counsel for the petitioner, argues that in view of the ratio in the case of Hitesh Kumar Ojha and another v. Krushna Chandra Mahapatra, AIR 1992 Orissa 91, the whole proceeding taken in the Money Suit is vitiated because of non-compliance with the provision under Order 5 Rule 19-A, C.P.C. and, therefore, on that ground alone the ex parte decree should have been set aside. Petitioner does not seek for an order of remand of the case for tendering supportive evidence in proof of the plea which he has taken. 5. In Hitesh Kumar Ojha (supra) the fact before this Court was that though the trial Court passed order for issue of notice in both the ways i.e. by the usual process as well as by regis¬tered post, but notice in that suit was not issued by registered post. The notice issued through usual process was received with affixture service with note of process server that the appellant No.2 refused to receive the notice. From the docu¬ment available in the LCR, this Court found that by the relevant period the said appellant No.2 was usually staying at Delhi and notice could not have been offered to him. Taking all such facts and circumstances into consideration it was held by this Court - “Though expression “shall” is not always indicative of mandatory nature of a provision yet where consequences which flow from the non-observance have far-reaching effect, use of the expression “shall” makes the provision mandatory. xxx xxx xxx The Court has discretion to dispense with issue of summons by registered post, if it considered so necessary. xxx xxx xxx The Court has discretion to dispense with issue of summons by registered post, if it considered so necessary. In the instant case, the Court had directed issue of summons both ways. Non-compliance therefore, rendered the proceeding invalid. On that basis also, the ex parte decree is not sustainable.” 6. It is not disputed at the Bar that after the recent amendment of the Code of Civil Procedure Rule 19-A is no more there in the statute book. Be that as it may, by the relevant date that provision was very much enforceable. Indeed, the provi¬sion in Rule 19-A is mandatory to be followed unless the Court dispense with issue of notice by registered post. Dispensation with such a procedure may be expressly stated in the order or it can be impliedly understood from the order passed by the Court. In the present case, the LCR indicates that learned Sub-Judge passed order to issue process by usual process. Therefore, im¬pliedly he invoked the proviso to sub-rule (1) of Rule 19-A and did not direct for issue of notice by registered post. The facts and circumstances of the case do not indicate that summons was suppressed from being duly served on the petitioner. Under such circumstance, petitioner cannot take advantage of the ratio in the case of Hitesh Kumar Ojha (supra) when he has not proved even prima facie that he did not refuse to receive the summons. There is also nothing on record to show or suggest that the plaintiff-Bank had any axe to grind against the petitioner so as to sup¬press the notice with a view to obtain an ex parte decree. For reasons best known to him petitioner did not choose to examine the person who gave him information relating to ex parte decree so as to seek for condonation of a long delay of about three years. Apart from that, he has not been able to show on record any cause much less good or sufficient cause to interfere with the ex parte decree. Under such circumstance, this Court does not find any illegality in the impugned orders so as to interfere with the same. The Civil Revision stands dismissed being devoid of merit. Revision dismissed.