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2010 DIGILAW 381 (GAU)

Kamal Kishor Soni v. Bhukli Devi

2010-05-31

AMITAVA ROY

body2010
1. The judgment and order dated 15.2.2011 passed by the learned Civil Judge No. 2, Kamrup, Guwahati in Misc. Appeal No.05/2010, whereby, the order dated 22.1.2010, passed by the learned Munsiff No.1, Kamrup, Guwahati in Misc. (J) Case No.416/2006 has been reversed, constitutes the subject-matter of challenge in the instant proceeding under section 115 of the Code of Civil Procedure, 1908 ('the Code') read with section 151 thereof. 2. I have heard Mr. S.P. Roy, learned counsel for the petitioner and Mr. S Medhi, learned counsel for the opposite party, who has entered appearance through a Caveat. The Caveat stands discharged. 3. The backdrop of facts in bare essentials would be necessary. The petitioner instituted T.S No. 73/1998 in the court of the learned Munsiff No.1, Kamrup, Guwahati praying for decree for declaration of his right, title and interest in and recovery of the suit property described in the schedule to the plaint against Smt. Bindu Devi and her sons, Shri Sambhu Kumar and Shri Kamal Kumar. The defendants, according to the petitioner, did not contest the suit even on receipt of summons and, thus, the same was decreed ex parte by the judgment and order dated 8.1.1999. The petitioner has asserted that the summons had been issued to the defendants by registered post as well as through the process server at their correct address. Whereas, neither the A/D cards nor the registered notice along therewith returned, the process server having served the summons in a substituted manner, he was examined by the learned trial court on 23.11.1998 and thereafter fixed the suit for ex parte hearing. Subsequent to the decree, the petitioner instituted Title Execution Case No. 7/1999. 4. Meanwhile, on 6.10.1999, the present opposite party filed an application under order IX, rule 13 of the Code for setting aside the ex parte decree. The other defendants, however, did not join her in the said application. In Misc. (J) Case No. 114/1999 that was registered on such an application, the petitioner filed his written objection resisting the prayer. The opposite party offered her son Shri Sambhu Kumar and Sri Chakreswar Chakraborty her advocate's clerk as witnesses in support of the averments made in the application. The petitioner's son, Sri Kamal Kishor Soni testified on his behalf. 5. (J) Case No. 114/1999 that was registered on such an application, the petitioner filed his written objection resisting the prayer. The opposite party offered her son Shri Sambhu Kumar and Sri Chakreswar Chakraborty her advocate's clerk as witnesses in support of the averments made in the application. The petitioner's son, Sri Kamal Kishor Soni testified on his behalf. 5. The learned trial court, by its order dated 22.1.2010 having dismissed the miscellaneous case, the opposite party preferred an appeal against the same being Misc. Appeal No.05/2010 as stated above. The learned Lower Appellate Court interfered with the decision of the learned trial court. Consequentially, the ex parte judgment and order passed in T.S. No.73/1998 was set aside and the learned trial court was directed to allow the appellant (opposite party herein) and other defendants to contest the suit. 6. Mr. Roy has insistently argued that the application filed under order EX, rule 13 of the Code being vague in material facts and particulars and bereft, inter alia, of the date and source of the information about the ex parte decree besides barred by limitation, the learned Lower Appellate Court was patently in error in allowing the same. Apart from the fact that all the defendants had not joined the opposite party in the application, the omission to disclose the date and source of knowledge of the ex parte decree is fatal, it (application) having been filed almost after an interval of nine months with no explanation therefor, he urged. Mr. Roy has contended that as the summons in the suit had been issued to the defendants by registered post with A/D at their correct address and the learned trial court had accepted the process prescribed by law with regard to the substituted service before proceeding with the suit ex parte, the learned Lower Appellate Court ought not to have overturned the findings recorded by the learned trial court in absence of any material justifying the same. Mr. Roy to reinforce this plea has taken this court through the series of orders passed by the learned trial court with regard to the examination of the process server before recording its satisfaction pertaining to service of summons on the defendants. Mr. Roy to reinforce this plea has taken this court through the series of orders passed by the learned trial court with regard to the examination of the process server before recording its satisfaction pertaining to service of summons on the defendants. According to the learned counsel, the approach of the learned Lower Appellate Court has not only been opposed to the weight of the materials, on record, its observations with regard to the mala fide and mischief attributed to the petitioner, are wholly unwarranted and baseless. He placed reliance on the decision of the Apex Court rendered in Lanka Venkateswarlu (D) by LRs. v. State of A. P. and Ors., AIR 2011 SCW 1450. 7. In response, Mr. Medhi has argued that not only the application, under order IX, rule 13 for setting aside the ex parte decree filed by the opposite party, was self-sufficient with the essential facts and particulars, the same having been adequately supplemented by the evidence adduced on her behalf, the learned Lower Appellate Court was perfectly justified in passing the impugned order. The witnesses examined on behalf of the opposite party have, in categorical terms, disclosed the date and source of her knowledge of the ex parte decree and, thus, the plea to the contrary is wholly frivolous, he insisted. Mr. Medhi dismissed the petitioner's cavil on the ground of non-association of the other defendants and contended that the omission of service of summons in the suit having been established, effacemerit of the ex parte decree as ordered by the learned Lower Appellate Court is valid and unassailable. 8. The materials on record and the arguments advanced have received the due consideration of this court. The institution of the suit against the opposite party and the other heirs and legal representatives, Ram Charitra Kumhar, the ex parte decree dated 8.1.1999 and the application under order IX, rule 13 of the Code only by her (opposite party) are matters of records. Whereas, the opposite party in her aforementioned application asserted that the defendants had never received the notice in the T.S. No.73/1998 and that she having come to know about the ex parte decree had hurriedly filed the application, the petitioner insisted to the contrary. Whereas, the opposite party in her aforementioned application asserted that the defendants had never received the notice in the T.S. No.73/1998 and that she having come to know about the ex parte decree had hurriedly filed the application, the petitioner insisted to the contrary. In his written objection filed against the said application, he averred on oath that after the institution of the suit, he took steps for service of summons on all the defendants and as they on being offered the summons, had refused to accept the same, the Zarikarak effected service by hanging the same on the wall of the defendants. He elaborated that on receipt of such report of the Zarikarak, the learned trial court examined him as a witness on 23.11.1998, and being satisfied about the validity of such service decide to, proceed with the suit ex parte. He questioned the maintainability of the application by citing the bar of limitation as well. The series of orders passed by the learned trial court in the suit ranging from 3.4.1998 to 23.11.1998 evince the aforementioned exercise undertaken by the learned trial court. These orders testify that not only the summons had been issued to all the defendants by registered post as well as through Nazir, but also that on receipt of the process server's report to the effect that summons had been hung on the wall of the defendants, the learned trial court examined him on oath on 23.11.1998, The order of that date reveals that the process server in course of his statement deposes that the summons along with the copies of the plaint when tendered to the defendants, they refused to accept the same, whereafter, he caused the service thereof by hanging the same on their wall. The learned trial court accepted the service, and noticing that the defendants in spite thereof had not entered appearance, ordered that the suit would proceed ex parte and fixed 10.12.1998 for such hearing. In passing such order, the learned trial court also took note of the postal receipt corresponding to the summons despatched to the defendants by registered post. The suit was, eventually, decreed on 8.1.1999 after examining the petitioner-plaintiff in support of the averments made in the plaint. 9. In passing such order, the learned trial court also took note of the postal receipt corresponding to the summons despatched to the defendants by registered post. The suit was, eventually, decreed on 8.1.1999 after examining the petitioner-plaintiff in support of the averments made in the plaint. 9. The application under order IX, rule 13 of the Code, as has been contended on behalf of the petitioner, is visibly vague and does not disclose, amongst others, the date of knowledge of the opposite party about the ex parte decree as well as the source of information to that effect. She too has chosen not to step into the witness box to testify in endorsement of the averments made in the application. Her son, Shri Sambhu Kumar and her advocate's clerk Sri Chakreswar Chakraborty, however, stated in their affidavit evidence that the date of knowledge of the ex parte decree to be 5.10.1999, whereafter, the application was filed on the next date. The advocates clerk stated that on having come to learn of the ex parte decree as well as the Title Execution Case No. 7/1999, he immediately informed the opposite party about the same. This testimony is in improvement of the averments made in the application under order EK, rule 13 of the Code. No explanation as well is forthcoming for whatever worth as to why the other defendants had not joined the opposite party in her endeavour to get the ex parte decree set aside. Be that as it may, in absence of pleaded facts with regard to the date and source of knowledge/information about the ex parte decree in the application under order IX, rule 13, the evidence to that effect as furnished by the witnesses of the opposite party, in the opinion of this court, ought not to be taken note of when judged on the fundamental principle of variance between the pleadings and proof. The learned Lower Appellate Court noticeably has also subscribed to this view in concluding that the plea taken in the application under order IX, rule 13 could not be said to have been proved by the evidence available on record, which travel beyond the pleadings. The learned Lower Appellate Court noticeably has also subscribed to this view in concluding that the plea taken in the application under order IX, rule 13 could not be said to have been proved by the evidence available on record, which travel beyond the pleadings. It, however, was of the view that the address of the defendants as provided in the plaint lacked in specifics and underlined the necessity of recording reasons for the court's satisfaction about service of notice as propounded by this court in Biswanath Bogar v. Gyarsllal Agarwalla, 2004 (Supp) GLT 234(2004) 1 GLR 615. It, thus, interfered with the order of the learned trial court concluding that the petitioner had, with ultimate design, furnished a vague and incomplete address, so that the summons in the suit could not be served on the defendants. 10. The opposite party at no point of time had raised any objection with regard to the correctness of the address of the defendants as mentioned in the plaint. No vagueness therein has also been imputed at any point of time. On the other hand, her address mentioned in her application order IX, rule 13 of the CPC is the same as in the suit. In this view of the matter as well as in the face of the modes of service of summons adopted in the suit including the verification of service thereof made by the learned trial court by examining the process server on oath, the view of the learned Lower Appellate Court lacks in persuasion. The observations recorded by it bearing on mala fide shenanigans and fraud against the petitioner have, thus, to be held to be wholly uncalled for. Though, in course of the arguments, the attention of this court was drawn to the fact that the report of the process server and the evidence recorded by the learned trial court had gone missing during the pendency of the miscellaneous proceedings before the learned trial court. On a perusal of the orders from 3.4.1998 to 23.11.1998, at this distant point of time, the same cannot be construed to have a decisive bearing on the issues raised herein. The learned District Judge, Kamrup, however, would cause necessary inquiries to be made in this regard and have a report submitted before this court within a period of four weeks here from. 11. The learned District Judge, Kamrup, however, would cause necessary inquiries to be made in this regard and have a report submitted before this court within a period of four weeks here from. 11. On a cumulative consideration of the factors narrated hereinabove, I find sufficient merit in the challenge laid against the judgment and order impugned. The petition is, thus, allowed. The judgment and order dated 15.2.2001, passed in Misc. Appeal No.05/2010 is set aside. No costs.