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2006 DIGILAW 1172 (PAT)

Janki Devi v. Nandan Kumar Singh

2006-12-04

REKHA KUMARI

body2006
Judgment 1. This appeal is directed against the order passed on 8.1.2003 by Sub-Judge I, Hajipur in Misc. Case No. 9/2001 by which the miscellaneous case filed by the appellant under Order 9 Rule 13 and Sec.151 C.RC. has been dismissed. 2. It appears that Title Suit No. 437/ 2000 was filed by the respondent/plaintiff for part performance of contract for sale. The said suit was heard ex parte and ex parte decree was passed. For setting aside the said decree Misc. Case No. 9/2001 was filed by the original defendant of the suit, namely, Golia Devi. In course of pendency of the said miscellaneous case, the original defendant (petitioner of the Misc. Case) died and her daughter Janki Devi was substituted, who is the appellant before this Bench. 3. Learned counsel for the appellant submitted that the original defendant had no knowledge of filing of the suit. There was no service of summons on her. The learned court below did not appreciate the evidence properly and has dismissed the miscellaneous case on the basis of evidence adduded by the respondent/O.P. who is a very cunning man. The evidence of the process surver and the postal peon are not fit to be believed The alleged L.T.I, of the appellant has not been examined by any expert and merely on oral evidence of the court peon as well as postal peon the L.T.I, on the service reports has been taken to be the L.T.I, of the original defendant. Learned counsel further submitted that miscellaneous case was filed immediately after the original defendant got the knowledge of ex parte decree. So there was no fault on the part of the defendant and that the court should have taken a liberal and lenient view and should have allowed the petition under Order 9 Rule 13 C.P.C. 4. Learned counsel appearing on behalf of the respondent opposed the submissions and contended that the learned court below was justified in rejecting the petition. He has properly appreciated the evidence and has disbelieved the evidence adduced on behalf of the appellant and has passed the impugned order particularly in view of the evidence of the court peon and the witnesses examined in proof of service and the postal peon. 5. He has properly appreciated the evidence and has disbelieved the evidence adduced on behalf of the appellant and has passed the impugned order particularly in view of the evidence of the court peon and the witnesses examined in proof of service and the postal peon. 5. It appears from the impugned order that the appellant P.W. 3 has denied in her evidence that her mother had received any summon of the suit and P.W. 2 has stated that he had informed Golia Devi (the original defendant) about the title suit. It further appears that the learned court below has relied mainly on the evidence of the process server (O.P.W. 5) and the postal peon (O.P.W. 4) in coming to its conclusion that the summons were duly served on Golia Devi. O.P.W. 5 has stated in his examination-in-chief that he had served the summons of T.S. No. 437/ 2000 on Golia Devi at her residence. But she refused to give her signature in token of the receipt of the summons. He, hence, wrote his report there and took the signatures of witnesses on it. O.P.W. 2 has also stated that in his presence the process server of the court served the summons on Golia Devi but she refused to put her signature in acknowledgement of the service. He has further stated that the process server then prepared his report and he put his signature (Ext. B) on it. But though both the witnesses have corroborated each other and according to them process server served the summons on Golia Devi and the process server wrote his report, but O.P.W. 5 himself stated in his cross-examination that he did not write his report on the date on which he had served the summons. This casts a doubt as to whether actually the process server had served the summons as stated by the witnesses. 6. As regards the service of summons by registered post O.P.W. 4 has stated that as postal peon he had served on 29.12.2000 an envelope on Golia Devi and she had put her L.T.I. on the acknowledgement receipt and by the side of her L.T.I. he had put his endorsement on the L.T.I. of Golia Devi. But in his cross-examination he has stated that he does not possess any proof that on 19.12.2000 he was posted at Hajipur Post Office. But in his cross-examination he has stated that he does not possess any proof that on 19.12.2000 he was posted at Hajipur Post Office. Therefore, simply on the above endorsement it would not be proper to hold that actually the registered notice was served on the original defendant. 7. Apart from the above evidence, it has also come that Golia Devi was an illiterate lady and was 80 years old. Nowhere it has come that she was a shrewd litigant. In such circumstances, when she is alleged to have refused to acknowledge the service of summons, she also refused to receive the lawyers notice, how can it be believed that she but received notices sent twice through postal peon and put her L.T.I. both the times. Besides this by the time the evidence in the misc. case begun, she had died and it was she alone who could have contradicted the evidence adduced by the O.R In such case the O.R had the opportunity to prove his case by getting the L.T.I, of Golia Devi compared with her admitted L.T.I, by an expert. Hence, when there is evidence on oath vs. oath the expert evidence alone would have proved the reality. But the O.P. failed to adduce any expert evidence. In that circumstances also, it will not be fit and proper to take the evidence adduced by the O.P. witness as gospel truth. 8. In view of the above discussion, perusal of the evidence adduced on behalf of both the parties and considering the aforesaid circumstances and the fact that the petition under Order 9 Rule 13 was filed very promptly, I consider it fit and proper that the court below should have given her one opportunity to the appellant to contest the case and dispose of the same on merit. The learned lower court, therefore, was not justified in rejecting the petition, filed under Order 9 Rule 13 C.P.C. This misc. case therefore is fit to be allowed and the same is hereby ellowed. 9. Accordingly, the appeal is allowed with cost of Rs. 500.00 and the impugned order is set aside. The setting aside of the order, passed in Misc. Case No. 9/ 2001 filed under Order 9 Rule 13, would amount to setting aside the ex parte order too passed in T.S. No. 437/2000. 10. 9. Accordingly, the appeal is allowed with cost of Rs. 500.00 and the impugned order is set aside. The setting aside of the order, passed in Misc. Case No. 9/ 2001 filed under Order 9 Rule 13, would amount to setting aside the ex parte order too passed in T.S. No. 437/2000. 10. The parties are directed to appear before the court concerned in T.S. No. 437/2000. The trial court shall dispose of the title suit in accordance with law.