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2007 DIGILAW 2 (JHR)

Fredric Charles Smith v. Alois Barla

2007-01-04

M.Y.EQBAL

body2007
ORDER M.Y. Eqbal, J. 1. This civil revision application under Section 115 of the Code of Civil Procedure has been filed by defendant No. 2--petitioner challenging the judgment xand order dated 8.6.2006 passed by District Judge, West Singhbhum at Chaibasa in Misc. Appeal No. 4 of 2005 by which he has dismissed the appeal and confirmed the order dated 21.6.2005 passed by the Mun-sif, Chaibasa in Misc. Case No. 17 of 2003 rejecting the petitioners application under Order IX Rule 13, CPC for setting aside exparte decree passed in Title Suit No. 2 of 1997. 2. The facts of the case lie in a narrow compass: The plaintiff-opposite party filed Title Suit No. 2 of 1997 for declaration of right, title and interest and for confirmation of possession and in the alternative, for recovery of possession of the suit land after holding that the Municipal Survey Settlement Entry in respect of the suit land in the name of the defendant-petitioner finally published in 1973 is wrong and erroneous and the same ought to have been recorded in the name of the plaintiff. The said suit was decreed ex parte on 18.2.1999. The petitioners case is that he came to know about the ex parte decree for the first time on 10.11.2003 from his neighbour who informed him about the Execution Case No. 09 of 1999 pending in the Court of Munsif for delivery of possession. The petitioner on receipt of the information, made an inquiry on 11.11.2003 and came to know about the suit and the ex parte decree passed on 18.2.1999. The petitioner accordingly made an application under Order IX, Rule 13 for setting aside exparte decree which was registered as Misc. Case No. 17 of 2003. The said Misc. Case was dismissed by the Munsif holding that summon was duly served on the petitioner (defendant No. 20). The petitioner then preferred appeal before the District Judge, Chaibasa being Misc. Appeal No. 4 of 2005 which was dismissed and the order of Munsif was confirmed. 3. Mr. M.K. Dey, learned Counsel appearing for the petitioner, submitted that the suit was filed by the plaintiff-O.P. against the petitioner as defendant No. 2 and his mother Mrs. Sipora Smith as defendant No. 1. Appeal No. 4 of 2005 which was dismissed and the order of Munsif was confirmed. 3. Mr. M.K. Dey, learned Counsel appearing for the petitioner, submitted that the suit was filed by the plaintiff-O.P. against the petitioner as defendant No. 2 and his mother Mrs. Sipora Smith as defendant No. 1. Learned Counsel submitted that the petitioners father died in the year 1950 and thereafter, his mother (defendant No. 1) got herself remarried in the year 1952 and she ceased to be the widow of his father. After her remarriage, the petitioner, who was in Railways service, started living separately from defendant No. 1 and settled at Kol-kata. The petitioner, therefore, had no knowledge about the institution of the suit since he did not receive any summon of the suit. 4. Mr. M.S. Anwar, learned Counsel appearing for the plaintiff O.P., on the other hand, submitted that the mother of the petitioner received summon on behalf of her son-petitioner also. Learned Counsel submitted that PW 2 admitted in his evidence that petitioners daughter is living in Kolkata and that one Ibraham Bhengra, who informed the petitioner about the ex parte decree, has not been examined. Learned Counsel further submitted that defendant No. 1, who is mother of the petitioner, has also not been examined. 5. I have heard learned Counsels appearing for the parties and perused the record. In the order passed by the Munsif, the factum of death of the petitioners father in 1950 and thereafter defendant No. 1 remarried with another person in 1952 has not been disbelieved by the Munsif, but he held that the receipt of petitioners summon by his mother is a valid service of the summons upon the petitioner. On the aforesaid basis and also on the ground that there is some contradiction in the date of knowledge of the ex parte decree, the Court below refused to set aside the ex parte decree. The appellate Court held that the petitioner has not mentioned in his application that his mother is living separately and that the mother of the petitioner has not been examined. The appellate Court further held that Mr. Bhengra, from whom the petitioner got information about the ex parte decree has not been examined. On these grounds, the appellate Court dismissed the appeal. 6. The appellate Court further held that Mr. Bhengra, from whom the petitioner got information about the ex parte decree has not been examined. On these grounds, the appellate Court dismissed the appeal. 6. Before hearing of this revision application, the original record of Title Suit No. 2 of 1997 was called for in order to appreciate the case of the parties and also to find out whether summon of the suit was duly served upon defendant No. 2 (petitioner). The order sheet dated 5.6.1998 shows that the Court of Munslf accepted the service of summon upon defendant No. 1 (mother of the petitioner) and held that service of summon in the name of petitioner on his mother is not a valid service. The Court, therefore, directed for issuance of fresh summon on the petitioner-defendant No. 2. The order dated 20.7.1998 shows that summon issued on defendant No. 2-petitioner by registered post was returned unserved. Then the plaintiff-O.P. prayed for service of summon by publication in the Gazette. Prayer was allowed by the Munsif and draft was sent for publication of notice in the Gazette. However, subsequent orders show that the suit was adjourned awaiting paper cutting showing service of summon. In the order dated 13.11.1998 it is mentioned that the paper cutting was received. However, in the order dated 27.11.1998 it is mentioned that inspite of Gazette publication, the defendant No. 2 (petitioner) did not appear. By order dated 5.1.1999, the suit was fixed for ex parte hearing on the ground that inspite of registered notice and Gazette publication, the defendant-petitioner did not appear. From reading of the entire order-sheets of Title Suit No. 2 of 1997, it is evidently clear that these orders are self-contradictory. In the record, there is paper cutting which shows that notice was published in a newspaper, namely, "Chamakta Aaina", which is a local newspaper of Jamshedpur. 7. From perusal of the record and the impugned orders, I do not find anything to the effect that the petitioner has been residing with his mother who admittedly remarried with another person. Even no evidence has come on the record that the petitioner has been residing with his mother at Jamshed-pur. On the contrary evidence has been led to the effect that petitioners daughter has been residing in Kolkata. 8. Be that as it may, summon of the suit was not served upon the petitioner. Even no evidence has come on the record that the petitioner has been residing with his mother at Jamshed-pur. On the contrary evidence has been led to the effect that petitioners daughter has been residing in Kolkata. 8. Be that as it may, summon of the suit was not served upon the petitioner. Even the summon sent by registered post in the address of his mother was returned unserved. The petitioner has stated on oath that he has been residing in Kolkata. Admittedly, the suit property stands in the name of the petitioner. The suit was filed by the plaintiff for declaration of his title over the suit property and further for a declaration that the entry made in the Municipal Survey Record finally published was erroneous. It cannot be believed in the ordinary course that the petitioner will allow the suit to be decreed exparte in favour of the plaintiff. Considering the entire facts and circumstances of the case, I find sufficient cause for non-appearance of the petitioner when the suit was heard ex parte. Both the Courts below have not correctly appreciated the facts of the case and the evidence brought on record. It is well settled that existence of sufficient cause for non-appearance in the suit when it was heard ex parte gives jurisdiction to the Court to set aside ex parte decree. As noticed above, summon of the suit was not served on the petitioner. Summon sent by registered post in the address of his mother at Jamshedpur was also returned unserved. Summon was then published in the newspaper which has circulation only in the Jamshedpur. In absence of sufficient service of summon, Court below proceeded ex parte and decreed the suit ex parte. The impugned orders, therefore, cannot sustain in law. 9. For the aforesaid reasons, this revision application is allowed and the impugned orders passed by the Courts below are set aside. Consequently, the ex parte decree passed in Title Suit No. 2 of 1997 is also set aside. The Court of Munsif shall proceed to decide the suit on merits. The petitioner shall appear in the suit and fill written statement within 30 days from today.