Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 691 (PAT)

Munna Lal Gupta v. Ram Babu Choudhary

2006-08-09

RAMESH KUMAR DATTA

body2006
Judgment 1. The petitioner has preferred this revision application against the order dated 27.4.2004 passed by the learned 2nd Additional District Judge, Patna in Misc. Appeal No. 18 of 2000 by which he has confirmed the order dated 19.2.2000 passed by the Munsif, 1st, Patna in Misc. Case No. 1 of 1999. 2. The opposite parties had filed an Eviction Suit No. 22 of 1998 on the grounds of personal necessity and default. The said case was decreed ex parte by order dated 4.12.1998. According to the petitioner he learnt about the said case for first time on over hearing the opposite parties on 22.12.1998 at 9.30 P.M. that an ex parte order had been passed for vacating the suit premises by the petitioner within two months. Thereafter he filed an urgent inspection slip on 23.12.1998 and learnt about the disposal of the eviction suit. 3. The case of the petitioner is that no notice of the said suit was served upon him either through Nazarat or by registered post and the entire thing was manipulated by the opposite parties. It is stated that from the order sheet of this case it appears that fraud and interpolation was committed regarding issuance of summons through Nazarat as also by registered post and further that a collusive report of refusal of service of summons was given when the summons actually has not been sent and attempted to be served upon the petitioner. 4. On the aforesaid grounds the Misc. Case No. 1 of 1999 was filed in which the opposite parties appeared and filed their objection asserting that service of notice/ summons had been made upon the petitioner and further that the petitioner had also knowledge of the written statement filed by opposite parties in T Suit No. 17 of 1997 filed by the petitioner, in which written statement it was specifically mentioned that they have filed Eviction Suit No. 22/98 against the petitioners. 5. In the Misc. Case the witnesses were examined on behalf of the petitioner as well as the opposite parties including the process server. Process Server had clearly stated that he had gone to the house of the petitioner and on identification of the petitioner by the opposite party no. 5. In the Misc. Case the witnesses were examined on behalf of the petitioner as well as the opposite parties including the process server. Process Server had clearly stated that he had gone to the house of the petitioner and on identification of the petitioner by the opposite party no. 1 he had served the summons upon him but the petitioner refused to receive the summons and, therefore, he had no option but to paste the said summons at the door of the petitioner in the presence of the witnesses. 6. On a consideration of the aforesaid facts and circumstances of the case and the evidence of the witnesses the learned Munsif 1st, Patna came to the conclusion that the petitioner had full knowledge of the hearing of the case including through the written statement filed in T.S. No. 17 of 1997. 7. The petitioner thereafter filed Misc. Appeal No. 18 of 2000 which also was dismissed after consideration of the facts and evidence on the record. 8. Before this Court the petitioner has reiterated the statement that had been made before the courts below regarding the collusive service report of the summons through Nazarat and the issue of summons through registered post as the same could not have been issued before filing of the postal stamp. It is, thus, submitted that in the absence of any publication in the newspaper it cannot be said that the processes were validly served on the petitioner and on that ground alone the ex parte order ought to have been set aside. It is further submitted by the learned counsel for the petitioner that mere knowledge of a suit does not amount to service of summons. Therefore, merely because the opposite parties had mentioned regarding the filing of the Eviction Suit No. 22 of 1998 in the written statement filed in the Title Suit No. 17 of 1997, it could not have been presumed that he had knowledge of the date of hearing of the suit and, in fact, he had no contact with his counsel after the filing of the earlier suit until 22.12.1998. 9. 9. In support of his contention learned counsel for the petitioner relies on a decision, of the Supreme Court in the case of Sushil Kumar Sabharwal V/s. Gurpeet Singh and Ors., A.I.R. 2002 S.C. 2370 in which the Supreme Court has held that mere knowledge of the pendency of the suit is not sufficient and what is relevant is the knowledge of the date of hearing. Learned counsel relies upon paragraph 11 of the said decision which is in the following terms; "The High Court has overlooked the second proviso to Rule 13 of O. 9. C.P.C. added by the 1976 Amendment which provides that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. It is the knowledge of the date of hearing and not the knowledge of pendency of suit which is relevant for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service of summons: on the facts it is a case of non-service of summons. The appellant has appeared in the witness-box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim which he did not avail and utilise." 10. From a perusal of the aforesaid decision it is evident that the facts of the said case and proposition laid down therein has no application to the present matter. In that case the clear conclusion of the Apex Court was that the case was not one of irregularity in the service of summons but on the facts it was a case of non-service of summons and the appellants testimony in the said case could not be demolished in the cross-examination. In that case the clear conclusion of the Apex Court was that the case was not one of irregularity in the service of summons but on the facts it was a case of non-service of summons and the appellants testimony in the said case could not be demolished in the cross-examination. So far as the present matter is concerned, the petitioner did not obtain knowledge of the case only on the basis of the written statement filed by the opposite parties in the earlier Title Suit filed by him; rather it was the clear case of opposite parties, which they successfully proved by examining the process server, that as a matter of fact the process server had gone to the house of the petitioner who was identified by the witnesses and thereafter he refused to accept the summons and then the process server had pasted the same at his door in the presence of witnesses. In the case of Sushil Kumar Sabharwal (supra), relied upon by the petitioner, there is no such finding of service of notice by the process server in the manner as contemplated by the Code of Civil Procedure. 11. Learned counsel for the opposite parties, on the other hand, relies upon the well established proposition that where there is concurrent finding of facts by the courts below on appreciation of the evidence then a different view should not be taken by the High Court exercising its power under section 115 of the Code of Civil Procedure on a reappreciation of the evidence in this regard learned counsel relies upon a Supreme Court decision in the case of Masjid Kacha Tank, Nahan V/s.Tuffail Mohammad reported in A.I.R. 1991 S.C. 455. ln paragraph 3 of the said Judgment the said propositions have been stated in the following terms: "It is well settled position in law that under S. 115 of the Code of Civil Procedure the High Court cannot reappreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction." 12. On a consideration of the submissions of the parties l find force in the submissions of the learned counsel for the opposite parties. In this case both the courts below have on a consideration of the evidence of the parties, come to the conclusion regarding the actual service of notice upon the petitioner and his refusal to receive the same. 13. On a consideration of the facts of the case l further find that there is no basis for the case of fraud or manipulation as raised by the petitioner. In fact, the question of such fraud could have arisen only if the opposite parties had the intention to keep the petitioner in the dark about the filing of the Eviction Suit No. 22 of 1998 so as to obtain an ex parte decree behind his back in their favour. The admitted factual position is that on 7.9.1998 a copy of the written statement filed in Title Suit No. 17 of 1977 (which had been filed by the petitioner) was served upon the counsel for the petitioner in which the clear stand taken by the opposite parties was that they had filed Title Eviction Suit No. 22 of 1998 for the eviction of the petitioner. The issue of summons by ordinary process and by registered post was also taking place around the same time in the month of September, 1998 and thus, if the opposite parties had intended to keep the petitioner in the dark regarding filing of the Title Eviction Suit No. 22 of 1998 then there would have been no occasion for them to have stated the said facts in the written statement in T.S. No. 17 of 1997 or to have filed the said written statement at that particular time instead of delaying the same. 14. Thus in the aforesaid facts and circumstances of the case l find no merit in the case of the petitioner. The revision application is accordingly dismissed.