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2004 DIGILAW 1358 (RAJ)

Onkarmal v. Mohar Singh

2004-09-20

PRAKASH TATIA

body2004
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. Theplaintiff-non-petitioner filed one suit for possession against six defendants on 18th May, 1996. All the six defendants are admittedly real brothers of the plaintiff The Trial Court after passing the order to proceed ex-parte against the defendant No. 1 on 19th July, 1997 decreed the suit of the plaintiff on 11.1998 as the Counsel appearing for the rest of the defendants also pleaded no instruction. 3. All the defendants submitted “an application under Order 9 Rule 13 CPC stating therein that the appellant No. 6 Manmal was residing at Delhi since last 10 years and he is deaf and dumb. He is not residing jointly with his brothers. The report also received on the summon of the said Manmal that he is residing at Delhi. The Trial Court ordered that new address of defendant No. 1 be filed and summon may be issued to defendant by the registered post. According to appellants, no summon was served upon the defendant Manmal at his Delhi address. The Trial Court proceeded on a report, which was received on the summon sent by ordinary course evidencing that summon of the suit was offered to Manmal’s brother Onkarmal at Old address. On summon it was mentioned that Onkarmal is residing with the defendant Manmal and he accepted the summon. Since despite service, nobody appeared on behalf of Manmal nor he appeared before the Trial Court, the Trial Court passed the order to proceed ex-parte against the defendant No. 1 on 19th April, 1997. On 29.97, learned Counsel for the defendants No. 2 to 6 appeared and pleaded no instruction and Court passed the order to proceed ex-parte against these defendants also. 4. All the defendants in their application under Order 9 Rule 13 CPC dated 28.4.1998 submitted that before pleading no instruction Counsel for the defendants No. 2 to 6 did not give any notice or information of the date fixed by the Court. According to applicants-appellants, despite knowledge and Courts order to serve the summons upon the defendant No. 1 at his Delhi address, the plaintiff did not serve the summon upon the defendant No. 1 at his Delhi address. According to applicants-appellants, despite knowledge and Courts order to serve the summons upon the defendant No. 1 at his Delhi address, the plaintiff did not serve the summon upon the defendant No. 1 at his Delhi address. The defendant No. 1 is residing at Delhi since last more than 10 years from the lime of alleged service of summons upon his brother, therefore, service upon his brother is not a sufficient service, rather report is false one. Therefore, the ex-parte decree passed by the Trial Court on 11.98 deserves to be set aside. The said application is supported by the affidavit of the defendant-applicant Manmal. 5. The plaintiff submitted reply to the application and gave the complete facts how the proceedings were taken by the Court below. The plaintiff in reply submitted that as per order of the Trial Court, the plaintiff submitted envelop for registry so that his summon may be sent to the defendant No. 1 at defendant No. l’s Delhi address. The summon was sent to the defendant No. 1 at his Delhi address. Acknowledgment receipt received back containing the signature of the recipient of that envelop. The plaintiff also rebutted that defendant Manmal is residing separate from the rest of the defendants and also denied that he was residing at Delhi since last 10 years. The detail reply of the plaintiff is supported by the affidavit. 6. In the Trial Court, the time was granted to all the defendants to produce evidence. The defendants-appellants took time for producing evidence on 18.1.99, but did not appear to give their own statement on oath nor produced any witness by specifically saying that the defendants appellants did not want to produce evidence, which is clear from the order dated 8.2.1999. The Trial Court after hearing the parties, by detail order dated 12th April, 1999, rejected the application of the defendants-appellants for setting aside ex-parte decree. 7. Being aggrieved against the said order of the Trial Court, the appellants preferred appeal before the first appellate Court and that too, was also dismissed on 25th August, 2001. 8. Being aggrieved against the two orders, the appellants have preferred this revision petition. 9. 7. Being aggrieved against the said order of the Trial Court, the appellants preferred appeal before the first appellate Court and that too, was also dismissed on 25th August, 2001. 8. Being aggrieved against the two orders, the appellants have preferred this revision petition. 9. Learned Counsel for the appellant vehemently submitted that the Trial Court should have decided the application filed by the defendants under Order 9 Rule 13 CPC as a Suit in view of the provisions of Section 141 of the CPC and should have afforded opportunity to produce evidence to the defendants-appellants. It is also submitted that there is affidavit of Manmal himself that he is residing separately from his brothers arid he was residing at Delhi since last 10 years. It is also submitted that the Court below has not drawn inference of service of the defendant No. 1 on the basis of the summon sent by registered post as alleged by the plaintiff-respondent. 10. Learned Counsel for the appellant further submits that the Courts below have committed serious illegality in misreading the summons and the documents and also affidavit. According to learned Counsel for the appellant, Hon’ble Apex Court as well as this Court have taken a view that in case where advocates plead no instruction without notice to the party, then the ex-parte decree is liable to be set aside. Learned Counsel for the appellant further submits that mere notice of pendency of the suit in a Court is not sufficient for the purpose of reckoning the period of limitation for submitting application under Order 9 Rule 13 CPC. 11. I considered the submissions of learned Counsel for the appellant. The question arises in this case is that whether the Courts below have committed any illegality in rejecting the application of the defendants filed under Order 9 Rule 13 CPC and in dismissing the appeal against the order of rejection of application. At the outset it may be pointed out that if the argument of learned Counsel for the appellant is accepted that the application under Order 9 Rule 13 CPC should have been tried as a suit in view of Section 141 of the CPC then the facts narrated above clearly reveal that the defendants-appellants submitted application under Order 9 Rule 13 CPC and only one of the defendant Manmal submitted affidavit in support of this application. The defendant No. 1 Manmal’s case is that he is residing separate from his brothers, away from his native place and that at Delhi, further since last 10 years. Therefore, if his case is accepted then there is no evidence available on record in support of facts pleaded by the defendants No. 2 to 6 as they did not even submit their affidavits in support of their contentions. The affidavit of defendant No. 1 Manmal is confined to his case only. The said affidavit of Manmal was rebutted by the plaintiff by filing his affidavit along with reply to the application under Order 9 Rule 13 CPC rebutting the facts alleged by the defendants. In the Court below, the defendants were given full opportunity to prove their case by producing evidence. The defendants did not choose to produce any evidence to prove that what they have alleged in their application is correct to even their knowledge. Therefore, the Courts below should have dismissed the application of the defendants No. 2 to 6 merely on the ground of no evidence in support of these defendants’ allegations and further, the Court below should have dismissed the application of the defendant No. 1 as he, after the rebuttal of his allegation by plaintiff on oath was given opportunity to produce evidence, did not appear to give his own statement on oath in support of his allegation despite opportunity given by the Trial Court. 12. The Judgment relied upon by learned Counsel for the appellant has no application to the facts of the case because there is no evidence of any of defendants in support of bald allegations against the advocate that he did not inform the defendants before pleading no instruction and in support of their contention that they even did not engage Sh. Roshan Singh as their advocate. Peculiar fact is that none of the defendants, namely, defendants No. 2 to 6 chose to file any affidavit in support of said allegation. After not contacting with their advocates and after not contesting the case by the litigants, levelling allegations against the advocate is a tendency is taken note of by this Court in several Judgment s, one of which I may refer is Jugal Bhatia vs. Shri Nath Cement Industries Pvt. Ltd., S.B. Civil Misc. Appeal No. 184/2004, decided on 2nd August, 2004. Appeal No. 184/2004, decided on 2nd August, 2004. The Judgment s relied by learned Counsel for the appellant delivered in the case of Milkiat Singh & Anr. vs. Joginder Singh & Ors., 1998(1) DNJ 47 --Distinguished, Manju vs. Krishna Gopal, 1998 (1) DNJ 335) = (RLW 1998(2) Raj. 1071, Tahil Ram Issardas Sadaranggani vs. Ramchand Issardas Sadarangani, 1993 Supp. (3) SCC 256, and Panna Lal vs. Murari Lal (dead) by his LRs, AIR 1967 SC 1384 , cannot be of any help to the petitioners looking to the facts of this case as noted above. In this case, there is no slightest reason to believe the allegations of petitioners. 13. It is true that as far as possible summon of the suit is required to be served upon the parties personally. The Court below after finding that there is report on the summon that defendant is residing at Delhi directed to issue notice by registered post. The order of the Court reveals that the notice was sent by registered post at defendant No. l’s Delhi address also. The acknowledgment receipt discloses that the same was issued to the defendant Manmal. In the place of sender, name of the Court has been mentioned. Therefore, it appears that summon was sent by the Court itself and not by the party. There is initial of the recipient of the summon as is clear from the acknowledgment receipt. It is not the case of the defendant No. 1 that the address given on A.D. receipt is not of his address. It is true that the Court below has not recorded its satisfaction about the service of the summon on the basis of said registered post, but question here relevant is that whether the efforts were made to serve the defendant personally or not. The summon sent at defendant No. l’s village address, which was issued on 3.97 came with a report of the process server with signature of brother of the defendant Manmal that he is receiving the summon for defendant Manmal and Manmal is residing with said Onkarmal. This statement is wrong or the summon was not signed by the brother of the defendant No. 1 Onkarmal has not been proved by the defendants by any evidence. This statement is wrong or the summon was not signed by the brother of the defendant No. 1 Onkarmal has not been proved by the defendants by any evidence. The defendants in their application stated that summon was never served to Manmal one of the defendant, but has not said anything about the summon sent by registered post. Therefore, it cannot be said that efforts were not made to serve defendant personally. Service in this case is personally upon the defendant No. 1 because the summon was accepted by Onkarmal, brother of the defendant No. 1 on behalf of defendant Manmal only. In view of the above fact, it cannot be said that defendant Manmal had no knowledge of the date of hearing and about the facts of the case. 14. Apart from it there appears to be no reason to feel influenced by the contention of the defendant No. 1 that he was residing away separately from their brothers at Delhi since last 10 years. The defendants submitted application under Order 9 Rule 13 CPC jointly with address of their village only. Even if defendant Manmal was residing at Delhi because of any reason it cannot be presumed that he was living separate from his brothers. There appears to be no reason to believe that if real brother of the defendant Manmal had knowledge of the pendency of the suit, he would not have informed Manmal about the suit, looking to the peculiar facts they still are commonly prosecuting the application under Order 9 Rule 13 CPC, appeal and revision. 15. The question of mis-reading of affidavits or any other documents as alleged by the learned Counsel for the petitioner is not correct, rather the Courts carefully considered the facts and documents. 16. In view of the above, 1 do not find any merit in this revision petition and the same is hereby dismissed.