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Orissa High Court · body

2010 DIGILAW 785 (ORI)

Upendranath Dey v. Ananta Kumar Dey

2010-11-19

B.K.PATEL

body2010
JUDGMENT B.K. PATEL, J. — Petitioner has assailed in this writ petition the legality of order dated 28.1.2008 passed by learned Civil Judge, (Junior Division), Jaleswar in Misc.Case No.3 of 2006 by which opposite party No.1’s application under Order 9 Rule 13 of the C.P.C. was allowed and ex parte decree passed in T.S. No.130 of 1991 by learned Munsif, Balasore was set aside subject to payment of cost of Rs.4,500/-. 2.Petitioner is the plaintiff and opposite party No.1 is the defendant No.1 in T.S. No.130 of 1991. Petitioner has filed the suit for correction of M.S. ROR. Petitioner’s case is that in response to notice opposite party No.1 entered appearance through Sri B. Jena, Advocate and took time thrice to file written statement. However, as no written statement was filed by opposite party No.1, ex parte decree was passed on 2.11.1992 in favour of the petitioner. Pursuant to the decree petitioner filed mutation cases bearing Misc.Case Nos.47 and 48 of 1995 in which also opposite party No.1 did not appear in spite of service of notice and M.S. ROR was corrected. Long after thirteen years, opposite party No.1 filed application under Order 9 Rule 13 of the C.P.C. accompanied by application under Section 5 of the Limitation Act. Petitioner filed objections against both the applications. In support of opposite party Nos.1’s assertions P.W.1 was examined and documents marked Exts.1 to 3 were admitted into evidence. It is averred in the writ petition that without affording any opportunity to the petitioner to cross-examine P.W.1, the impugned order was passed erroneously holding that summons was not served on the opposite party No.1 in the suit. 3.It was contended by the learned counsel for the petitioner that order sheet in T.S. No.130 of 1991 reveals that opposite party No.1 had entered appearance through Sri B. Jena, Advocate on 4.5.1992 and filed petitions for time to file written statement and for setting aside the order setting him ex parte. On 24.6.1992 also opposite party No.1 had filed petition for time to file written statement which was allowed subject to payment of cost of Rs.10/-. However, opposite party No.1 neither paid cost nor took any step on 6.7.1992 and 28.7.1992 for which application dated 4.5.1992 to set aside the order setting opposite party No.1 ex parte was rejected. On 24.6.1992 also opposite party No.1 had filed petition for time to file written statement which was allowed subject to payment of cost of Rs.10/-. However, opposite party No.1 neither paid cost nor took any step on 6.7.1992 and 28.7.1992 for which application dated 4.5.1992 to set aside the order setting opposite party No.1 ex parte was rejected. Notice was issued to opposite party No.1 in mutation cases also, but he did not participate in the proceeding before the Tahasildar. After long lapse of thirteen years, opposite party No.1 filed application under Order 9 Rule 13 of the C.P.C. on the ground that the petitioner had not supplied correct address of opposite party No.1 and committed fraud on the Court in order to obtain ex parte decree and that opposite party No.1 had no knowledge regarding the ex parte decree till he was told regarding the same by his lawyer appearing in C.S. No.65 of 2003-1. Learned Court below passed the impugned order without considering petitioner’s objections and without giving him opportunity to cross-examine opposite party Nos.1’s son who was examined as P.W.1. It was strenuously contended that learned Court below had no basis to come to the finding that the opposite party No.1 had no knowledge regarding the ex parte decree till filing of application under Order 9 Rule 13 of the C.P.C. in the year 2006. 4.It was contended on behalf of learned counsel for the opposite party No.1 that petitioner practised fraud on the Court to obtain ex parte decree dated 2.11.1992. No notice was ever served on opposite party No.1 in the suit. He did not execute any Vakalatnama in favour of Sri B. Jena, Advocate. Opposite party No.1 could know about the ex parte decree from his lawyer appearing in C.S. No.65 of 2003-1 in which copy of the ex parte decree was filed by the petitioner on 30.11.2005. Evidence was adduced on behalf of opposite party No.1 to substantiate such assertions. P.W.1 was cross-examined on behalf of the petitioner. No evidence was adduced on behalf of the petitioner to substantiate the claim that notice was issued to opposite party No.1 or that opposite party No.1 entered appearance through any counsel. Evidence was adduced on behalf of opposite party No.1 to substantiate such assertions. P.W.1 was cross-examined on behalf of the petitioner. No evidence was adduced on behalf of the petitioner to substantiate the claim that notice was issued to opposite party No.1 or that opposite party No.1 entered appearance through any counsel. Learned Court below has passed the impugned order upon perusal of the case record which indicates that service of summons on opposite party No.1 was held by order dated 22.2.1992 to be sufficient after ‘refusal postal service.’ S.R. and P.A. of opposite party No.1 indicating due service of notice was not available in the case record. Learned Court below has awarded exemplary cost of Rs.4,500/- to take care of inconvenience caused to the petitioner. In such circumstances, there is no reason to interfere with the finding of fact regarding non-service of summons in exercise of writ jurisdiction. 5.Non-service of summons against a defendant is one of the two statutory grounds under Order 9 Rule 13 C.P.C. for setting aside a decree passed against him ex parte. Provision, inter alia, mandates that in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, Court shall make an order setting aside the decree as against him on such terms as to costs. It has been held in Rabindra Pras Kamilla v. Abhaya Prasad Kamilla; (1987) CLT (Supp.) 428 that Order 9 Rule 13 C.P.C. is a beneficial legislation for the benefit of the defendant against whom ex parte decree has been passed. Subject to the specific preconditions, the same is to be interpreted liberally in favour of the defendant applying for setting aside the ex parte decree. In Prafulla Chandra Deo v. Satyanarayan Chandra Deo and another : 1992 (I) OLR 277 and Bishnu Charan Malla v. Sanskarsan Mohapatra alias Behera and others : 2003 (I) OLR 61 it has been observed that even if a defendant might have knowledge of the suit, yet he is within his right to expect an effective service of summons on him calling upon him to appear in Court and unless such service is made, he may avoid the Court. In Lundu Roudia v. Dusman Roudia : 1996 (II) OLR 355 it has been held that while dealing with application under Order 9 Rule 13 C.P.C. Court should see that the rights of the parties are determined on contest. Approach should not be over technical and contrary to liberal and should be justice oriented. 6.Case of the present opposite party No.1 is that no summons was served on him in the suit. He came to know regarding the ex parte decree when copy of the same was filed in Court by the petitioner on 30.11.2005 in I.A. No.3 of 2004 arising of Civil Suit No.65 of 2003-I. Application under Order 9 Rule 13 C.P.C. was filed on 16.1.2006 along the application under Section 5 of the Limitation Act and a medical certificate indicating opposite party No.1’s illness from 1.11.2005 to 13.1.2006. Petitioner filed objections to the petitions filed by the opposite party No.1. Opposite party No.1 had executed power of attorney in favour of his son who was examined as P.W.1. In his affidavit evidence P.W.1 reiterated the assertions made in the applications under Order 9 Rule 13 C.P.C. and Section 5 of the Limitation Act. His evidence regarding illness found corroboration from the medical certificate Ext.3. Certified copy of the order in I.A. No.3 of 2004 was also filed at Ext.2. Though order sheets in T.S. No.130 of 1991 indicates that the opposite party No.1 appeared through Mr. B. Jena, Advocate and filed petitions for time on 4.5.1992 and 26.6.1992, no suggestion whatsoever was given to P.W.1 in course of his cross-examination regarding opposite party No.1’s appearance in Court. P.W.1 appears to have reiterated in course of his cross-examination that no notice was served on his father. Moreover, no oral or documentary evidence was adduced on behalf of the petitioner to indicate service of summons on opposite party No.1. Even the Vakalatnama alleged to have been executed by P.W.1 in favour of Sri B. Jena, Advocate was not confronted to P.W.1. On examination of the case record learned Court below does not appear to have found the S.R. and P.A. of opposite party No.1. Even the Vakalatnama alleged to have been executed by P.W.1 in favour of Sri B. Jena, Advocate was not confronted to P.W.1. On examination of the case record learned Court below does not appear to have found the S.R. and P.A. of opposite party No.1. Finding of the learned Court below regarding non-service of summons having been based on the basis of such materials on record, in view of the statutory provisions under Order 9 Rule 13 C.P.C. and legal principles indicated above, there appears no ground to interfere with the impugned order. Therefore, the writ petition is dismissed. Petition dismissed.