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2007 DIGILAW 504 (PAT)

Jogendra Bhagat v. Jaishree Devi, Baitahi

2007-03-12

REKHA KUMARI

body2007
Judgment 1. The order dated 14.5.2004 passed by the Addl. District Judge VI, Muzaffarpur in Misc. Case No. 1/95 is under challenge in this appeal. The learned Addl. District Judge by the impugned order has dismissed the miscellaneous case which had been filed by the appellant-petitioner under Order 41 Rule 21 C.P.C. for setting aside the ex-parte judgment in Title Appeal No. 32/1993. 2. The facts giving rise to this appeal are as follows: Partition Suit No. 28/1975 was filed by the respondent/plaintiff claiming her one third share in the property. The said suit after contest was dismissed. The plaintiff/ respondent thereafter preferred an appeal bearing Title Appeal No. 32/1993. The said appeal was heard ex parte and an ex parte decree was passed on 23.12.1994 in favour of the plaintiff/respondent by the 5th Addl. District Judge, Muzaffarpur. The appellants/defendants knowing about the said ex parte judgment in the title appeal filed Misc. Case No. 1/1995 but the said case after contest was dismissed as stated above. Being aggrieved by the said order the present appeal has been filed. 3. Learned counsel for the appellants submitted that in the appeal there had been several respondents, but no notices was served as against any of the respondents. The evidence adduced on behalf of service of notice are not worth believing and the report of the peon is not above suspicion. But the learned trial court without properly evaluating the evidence adduced on behalf of both the parties has wrongly accepted the evidence adduced on behalf of the plaintiff/respondents (O.P.in Misc. case) and has dismissed the miscellaneous case. 4. Learned cousnel appearing for the respondent, on the other hand, contended that the learned court below has properly evaluated the evidence adduced on behalf of both the*parties.. Besides this, the evidence of respondent/O.P. is also supported by the documentary evidence i.e. service reports showing notices served against some of the respondents (Ext. B series) and the receipts from the Post Office showing issuance of registered notice and registered A.Ds. Apart from this he also submitted that.the notices were served on the G.A.L of the minor respondents also and the said Advocate has been examined on behalf of the respondent/O.P. and he has also supported the case of the O.Ps. and has proved issuance of notice through certificate of posting as against the minor respondents of the said appeal. Apart from this he also submitted that.the notices were served on the G.A.L of the minor respondents also and the said Advocate has been examined on behalf of the respondent/O.P. and he has also supported the case of the O.Ps. and has proved issuance of notice through certificate of posting as against the minor respondents of the said appeal. The order-sheet drawn by the Pleader Commissioner for carving out a portion of the disputed land has also been filed which would show that both the parties had been noticed to remain present at the time of carving out Takhta. Therefore, learned counsel for the respondent/O.P. plaintiff in the suit submitted that after considering the evidence the court below has rightly came to the finding that the appellants/defendants could not show that notices were not served on them. Therefore, there is nothing wrong in the judgment and hence, this appeal is fit to be dismissed. 5. For the sake of convenience the appellants and the respondents of this miscellaneous appeal shall hereinafter be referred to as the defendant/applicant and plaintiff/O.P. respectively. 6. Order 41 Rule 21 C.P.C. provides that when an appeal is heard ex parte and the judgment is pronounced against the respondent he may appeal to the appellate court to rehear the appeal and if he satisfies the court that the notices were not duly served or he was prevented by sufficient cause form appearing when the appeal was called out for hearing, the court shall rehear the appeal on such terms as to costs or otherwise if it thinks fit to impose upon him. 7. In the miscellaneous case evidence has been adduced on behalf of both the parties. A.W. 4, A.W. 5 who are parties in the appeal have stated that no notice of appeal was served on them and they came to know of the appeal for the first time, after the ex parte judgment, from Ruplal Bhagat. A.W. 6 has also corroborated that he had given information of the ex parte judgment to them. 8. The plaintiff/O.P., on the other hand, examined the court peon (O.RW. 3) who has stated that he had gone to the residence of the appellants/applicants and respondent Ramvir Bhagat after receiving notice put his signature (Ext. A) and the other respondent received the notices but refused to sign the notice. The report of the peon is Ext. B. O.P.Ws. 8. The plaintiff/O.P., on the other hand, examined the court peon (O.RW. 3) who has stated that he had gone to the residence of the appellants/applicants and respondent Ramvir Bhagat after receiving notice put his signature (Ext. A) and the other respondent received the notices but refused to sign the notice. The report of the peon is Ext. B. O.P.Ws. 1, 2 and 4 in their evidence also stated that in their presence court peon had served summon on respondent Ranbir Bhagat who put his signature as acknowledgement of the receipt of the notice, but the other respondents though received the notices but refused to sign the Goswara copy of the notice in token of the receipt of the notices. O.P.Ws. 1, 2 have also stated that they also put their signature on the report of the court peon as witnesses. 9. Though according to the O.P.Ws. there was personal service on Rambir Bhagat and the other respondents, who refuse to sign the acknowledgements, the report of the court peon (Ext. B) shows that the fact of personal service on Rambir Bhagat was subsequently added. This creates a doubt as to whether actually the report is genuine and in fact it makes the whole report suspicious. The defendant Rambir Bhagat died before the evidence in miscellaneous case adduced and the A.Ws. have denied service of summons, but none of the A.Ws. was confronted with the alleged signature of Rambir Bhagat during their evidence by the opposite party. The opposite party has examined O.P.W. 4 guardian ad litem to show that they had served notices in respect of the minor respondent on him, O.P.W. 4 has also accepted it. He has further stated that he sent the notice under certificate of posting, but no receipt has been filed to show dispatch of the notice by him. 10. The case of the plaintiff/O.P. also is that they had sent registered notices to the respondents by post. But no postal receipt or A.D. has been proved to show that any notice in the appeal prior to the ex parte hearing was sent to any of the respondents by post. The postal receipts Ext. C series do not relate to the appeal in which ex parte decree was passed. 11. But no postal receipt or A.D. has been proved to show that any notice in the appeal prior to the ex parte hearing was sent to any of the respondents by post. The postal receipts Ext. C series do not relate to the appeal in which ex parte decree was passed. 11. Under the above circumstances, it was not proper for the learned court below to hold that the notices were served on the respondents and as such, it was not proper for him to dismiss the miscellaneous case. 12. Accordingly, the impugned order is set aside and this appeal is allowed with cost of Rs. 500/-. The ex parte judgment and decree passed in Title Appeal No. 23/93 is also set aside. Since the matter has become old, both the parties are directed to appear before the lower court concerned on 2nd May, 2007 and the learned court below after giving both the parties an opportunity of hearing shall rehear the appeal and dispose it of in accordance with law.