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2011 DIGILAW 196 (JHR)

Anil Kumar v. Amit Narayan Sharma

2011-03-15

POONAM SRIVASTAV

body2011
Order Heard learned counsels for the respective parties. 2. The instant civil revision application has been preferred against the order dated 31st July 2009, passed by the Subordinate Judge-VI, Ranchi, in Misc. Case No. 15 of 2007 arising out of Title Suit No. 251 of 2006. An ex-parte decree was passed on 25th May, 2007 against the opposite parties, which was recalled by the Court 011 an application under Order IX Rule13 read with section 151 of the C.P.C. 3. The facts of the case, in short, are that a declaratory suit was preferred by the plaintiffs alongwith an injunction application on 16.9.2006. The suit was admitted and notices were issued to the opposite parties on 18.9.2006 under registered cover as well as through Nazarat and on 27.9.2006 the service was effected on defendant no. 1, who received notice on behalf of herself and as also on behalf of defendant no. 2. Notice was also sent through special messenger but the same was refused on the ground that they have already been served. However, this service was not accepted by the Court and, therefore, the plaintiff was directed to effect substituted service by publication vide order dated 5th December 2006. Accordingly, notices were published in the daily Hindi newspaper "AAJ". Thereafter the Court vide order dated 10th January 2007 passed order holding that the service was sufficient upon the defendants and fixed the suit for ex-parte hearing and the exparte judgment and decree was passed on 25th May 2007. Immediately thereafter an inspection slip was moved alongwith Vakalatnama through counsel on behalf of both the defendants on 29th May 2007 and the inspection was done on 30th May 2007. The Miscellaneous Case No. 15 of 2007 was filed on behalf of the defendants-opposite parties under Order IX Rule 13 read with section 151 of the Code of Civil Procedure for setting aside the ex• parte judgment and decree as the defendants did not receive the notice and the publication in Daily Hindi newspaper "Aaj" was not sufficient for the reasons that it is not widely circulated. It has very limited circulation and the defendant is not subscriber of newspaper "AAJ". 4. It has very limited circulation and the defendant is not subscriber of newspaper "AAJ". 4. Both the parties led evidence and the perusal of the judgment shows that the evidence has been discussed in detail in paragraph-6 onward, and the Court below was of the view that since the prior service effected on one of the defendant on behalf of both the defendants was held by the Court not to be sufficient and publication by substituted service was directed to be made in the Hindi daily newspaper, therefore, the Court was not inclined to reexamine the matter. However, oral evidence was also led and the plaintiff admitted in his cross-examination that he is not subscriber of "Aaj" newspaper. The findings recorded by the Court below is that the publication of notice made in the newspaper "Aaj" was not under a popular circulation and therefore, the substituted service by publication cannot be held to be sufficient. However, before allowing the application under Order IX Rule 13 read with section 151 of the Civil Procedure a cost of Rs. 3000/- (Three thousand) was imposed upon the defendants/ opposite party nos. 1 and 2 and the defendants/opposite party nos. 1 and 2 were granted a definite time for bringing on record the written statement. 5. Counsel appearing on behalf of the plaintiffs/petitioners tried to lay emphasis on the fact that the notice was sufficient at the very initial stage, but the same has not been accepted by the Court below for the reasons, which are liable to be ignored and the order passed in the Miscellaneous Case is also liable to be quashed, in view of second proviso to Order IX Rule 13 of the Civil Procedure Code. 6. After hearing learned counsel at length, I am of the view that in the instant case the Court below has thrashed out the oral evidence as well as documentary evidence and arrived at a conclusion after appraisal of evidence, I am not inclined to reappraise the entire evidence at this stage' specially when an opportunity is granted to the defendants/opposite-parties to contest the suit on merit after imposing cost. Reliance has also been placed by the Court below while allowing the application filed under Order IX Rule 13 of the Civil Procedure Code on the decision of the Apex Court reported in 2001 SAR (Civil) page 741. 7. Reliance has also been placed by the Court below while allowing the application filed under Order IX Rule 13 of the Civil Procedure Code on the decision of the Apex Court reported in 2001 SAR (Civil) page 741. 7. In my view findings recorded by the Court below are justified, the Court has held that the parties should be given an opportunity to contest the suit on merit instead of decreeing the suit on technical objection. It is also to be borne in mind that the plaintiff's claim that a valid right has accrued in his favour is only after a one sided hearing. The evidence was accepted without any cross-examination or rebuttal on the part of defendants, therefore, the judgment is a lopsided one. The 378 Y ogendra Pandit VS. Stat. cost imposed is- deposited and therefore the defendants are entitled for a fair hearing. 8. In view of this, though I do not propose to interfere in the judgment of the Court below passed in the Miscellaneous Case, but the objection of the learned counsel on behalf of the plaintiffs appears to be fully justified that there is already sufficient delay in the decision 'of the suit and the plaintiffs are suffering loss for no fault on their part. They have taken precaution to effect the service but inspite of this, the suit is pending at the trial stage. 9. In view of all •these submissions, the order allowing the application under Order IX Rule 13 read with section 151 of the C.P.C. is, therefore, conformed and the parties are allowed to contest the suit on merit. The Court below is directed to ensure that no further delay is caused in disposal of t~e suit, since the suit was instituted as far back as in the year 2006 and a long period has already elapsed in disposal of the suit. 10. I am informed by learned counsel appearing on behalf of the defendants/ opposite party nos. 1 and 2 herein that the cost as imposed by the Court below has already been deposited and the written statement has been filed. 11. Before parting with the judgment, the Court below is directed to dispose of the suit as early as possible without'granting any undue adjournment to "either of the parties. 1 and 2 herein that the cost as imposed by the Court below has already been deposited and the written statement has been filed. 11. Before parting with the judgment, the Court below is directed to dispose of the suit as early as possible without'granting any undue adjournment to "either of the parties. In event, certain compe!ling circumstances of adjournment arises, it shall be done only after recording the reasons in writing otherwise suit shall proceed, if possible, on day to day basis. 12. With the aforesaid observations and directions, this revision application stands dismissed. - @@@@@@@@@ informant never informed to police station about occurrence nor informed about name of miscreants in next morning of occur renee-only when dead body was recovered, fardbeyan was given raising suspicion against appellant on basis of disclosure made by PW 6-testimonyof informant, PW 2 and PW 3 unworthy of credence-conviction and sentence set aside. (Para 6) By Court.-By the impugned judgment and order, the appellant, on being found guilty for committing murder of one Chipri Barjo (wife of the informant) after kidnapping her, was cpnvicted under Section 302/34 and also under Section 364/34 of the Indian Penal Code and was sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal Code and further to undergo rigorous imprisonment for six years under Section 364/34 of the Indian Penal Code. 2. The case of the prosecution is that on 25.3.1990 while the informant was sleeping in his house in the night alongwith his wife Chipri Barjo (deceased~and children, two unknown persons having sword, tangi and torch with them entered into the house and took away his wife with them. Thereupon, Sukra Barjo (informant) followed them, but he was assaulted with tangi, as a result of which, he fell down. The informant due to darkness could not identify the miscreants. In the morning, when he narrated about the occurrence to his brother Daso Barjo and Bahadur Kondenkel, they went out in search of the wife of the informant. Thereupon, Sukra Barjo (informant) followed them, but he was assaulted with tangi, as a result of which, he fell down. The informant due to darkness could not identify the miscreants. In the morning, when he narrated about the occurrence to his brother Daso Barjo and Bahadur Kondenkel, they went out in search of the wife of the informant. When they came back, Daso Barjo informed to the informant that in course of her search, when he came to the house of Bi?tu Kondenkel, he disclosed him that in the previous night while he had been sleeping in his house, two persons, namely, Kaira Aida and Barjo Hembrom (appellant) having sword, tangi and torch with them had come to his house and asked him to accompany them to a place to dance with them. L of Jharkhand 2011 (2) JLJR 3. Further case of the prosecution as has emerged out from the evidence of P.W. 2 is that on 28.3.1990, when the dead body of the deceased Chipri Barjo was recovered, the informant, Sukra Barjo (P.W. 5) at about 9.30 A.M. came to the Kumardungi Police Station' where his Fardbeyan (Ext. 4) was recorded. On recovery of the dead body, Investigating Officer on holding inquest on the dead body was prepared an inquest report and the dead body was sent for post mortem' examination which was conducted by Dr. R.P. Singh on 29.3.1990 whereby the Doctor, who was never examined by the prosecution, found the cause of death due to shock and haemorrhage on account of stab wound inflicted over mid abdomen. The Investigation Officer was also not examined in this case by the prosecution. 4. After completion of investigation, the Investigating Officer submitted charge sheet agqinst this appellant as well as Kaira Aida (since died). The appellant was put on trial wherein the prosecution examined the informant as P.W. 5, who testified that it was this appellant and one Kaira Aida, who had entered into the house in the night of the occurrence and took away his wife whose dead body was recovered after four days. P.W. 2, Dayaram Munda and P.W. 3, Rautu Pingua did testify that the informant Sukra Barjo informed them that in the last night the appellant and the other accused had taken away his wife whose dead body was recovered. after some days. P.W. 2, Dayaram Munda and P.W. 3, Rautu Pingua did testify that the informant Sukra Barjo informed them that in the last night the appellant and the other accused had taken away his wife whose dead body was recovered. after some days. P.W. 6 Bistu Kondenkel did testify that at about 12 O'clock in the night on 25.3.1990 (Sunday), the appellant and the other accused having sword, tangi and torch with them came to his house and asked to accompany them to village Kharkhori to see dance. The trial Court on putting reliance on the testimony of the aforesaid witnesses did find the appellant guilty and as such, recorded the order of conviction and sentence. ~011 (2) JLJR Sidheshwar Pras 5. Mr. R.C. Khatri, learned counsel appearing for the appellant submits that the informant had never identified the miscreants who had taken away the wife of the informant with them. Still he raised suspicion against this appellant and the other accused for the reason that P.W. 6, Bistu Kondenkel, had disclosed the informant that two persons had come to his house armed with Sword, Tangi and Torch and asked him to accompany them to . come to other village and only on that basis, the appellant has been convicted and sentenced by the impugned judgment and order which is fit to be set aside. 6. Having heard learned counsel appearing for the appellant, we do find that the informant Sukra Barjo (P.W. 5) in his evidence did testify that while he was sleeping in his house alongwith his wife and children, this appellant Barjo Hembrom and other accused Kaira Aida came and assaulted him with tangi, as a result of which he fell unconscious and then they took away his wife whose dead body. was recovered after four days. Aforesaid evidence never inspire confidence to be believed in view of the statement made in the Fardbeyan wherein it has been stated quite categorically by the informant that he could not identify the miscreants who took away his wife. The informant, as per his statement made in the F.I.R and also L in his evidence had also been assaulted but he never informed to the police station about the occurrence nor seems to have informed anybody about the name of the miscreants in the next morning of the occurrence. The informant, as per his statement made in the F.I.R and also L in his evidence had also been assaulted but he never informed to the police station about the occurrence nor seems to have informed anybody about the name of the miscreants in the next morning of the occurrence. It is only, as per the evidence of P.W. 2, when dead body was recovered, the Fardbeyan was given raising suspicion against this appellant on the basis of disclosure made by the F}.W. 6 that in the night of occurrence, this appel-' lant, Barjo Hembrom and other accused, Kaira Aida had come to his house who were having sword, tangi and torch with :ad V5. State of Jharkhand 381 them. In that background, testimony of not only the informant is unworthy of credence but also of P.W. 2 and P.W. 3 who have testified that the informant told them that this appellant Barjo Hembrom and other accused, Kaira Aida took away his wife. When the informant. himself could not identify the miscreants, who had taken the wife of the informant how he can disclose the name of this appellant and other accused to P.W. 2 and P.W. 3. Therefore, their evidences are not worth reliable. The trial Court without appreciating the important aspect of the matter, as stated above, recorded the order of conviction and sentence which is quite illegal and hence, it is set aside. Consequently, the appellant is acquitted of all the charges levelled against him and is directed to be released forthwith if not wanted in any other case. 7. In the result, this appeal is allowed. .