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2011 DIGILAW 777 (GAU)

Ajhar Ali v. Saidur Rahman @ Saidul Islam

2011-09-19

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. Against an ex parte decree, dated 10.7.2009, passed, in Title Suit No. 58 of 2009, by the court learned Munsiff No. 1, Barpeta, an application was made, under order IX, rule 13, CPC, by two defendants, against whom, the said ex parte decree had been obtained. By the said application, the said defendants sought to get set aside the said ex parte decree on the ground that the defendants had not been served with the summons issued to them in the said suit. By order, dated 19.5.2011, as the learned Munsiff has set aside the joint decree passed against the two defendants, namely, defendant Nos. 1 and 2, the plaintiffs, feeling aggrieved, has filed this revision. 2. Heard Mr. I.H. Laskar, learned counsel for the petitioner-plaintiffs. 3. While considering the present revision, it may be noted that according to the report of the Process Server, the defendant No. 1 was served with the summons on 20.3.2009 and the defendant No. 1 also received summons on behalf of his own brother, namely, defendant No. 2, who is major. 4. Drawing attention to the report of the Process Server, it is, now, contended by Mr. Laskar, that under rule IX, order 13, CPC, the summons stood served not only on the defendant No. 1, but on defendant No. 2 as well. While considering the correctness of the above submission, what is extremely important to note is that the defendant No. 1, namely, Sahidul Islam, appeared as a witness, he has deposed, in his examination-in-chief, that the summons on none of the two defendants had been served. This assertion of the defendant No. 1, made on oath, went unchallenged. This apart, no evidence, in support of the fact that the summons stood served, on the said two defendants, was adduced by the plaintiff-decree holders. In such circumstances, it was not possible to place implicit reliance on the Process Server's report. 5. At any rate, what transpires from the Process Server's report is that the summons had been served on the defendant No. 1 and the learned trial court took the view, in the impugned order, that summons stood served on the defendant No. 1, but not on the defendant No. 2. 5. At any rate, what transpires from the Process Server's report is that the summons had been served on the defendant No. 1 and the learned trial court took the view, in the impugned order, that summons stood served on the defendant No. 1, but not on the defendant No. 2. Having reached to this conclusion, the learned trial court pointed out that since the proviso to order IX, rule 13 stated that where the decree is of such a nature that it cannot be set aside against one defendant only, the decree may be set aside against all or any of the defendants. 6. Apart from the fact that in the absence of any challenge to the evidence of the defendant No. 1, it could not have really been held, and ought not to have been held, by the learned trial court that the defendant No. 1 stood served by the summons, what is important to note is that order V, rule 15, CPC reads as under : 15. Where service may be on an adult member of defendant's family. - Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on his at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him. 7. From a careful reading of order V, rule 15, what transpires is that before service of summons on a defendant is treated as complete, it must be shown not only that the defendant was absent from his residence at the time, when the service of the summons was sought to be effected on him at his residence, but that there was no likelihood of the defendant to be found, in his residence, within a reasonable time and that he has no agent empowered to accept service of summons on his behalf. Subject to the satisfaction of these pre-conditions. Order V, rule 15permits service of summons on any adult member of the family on behalf of the defendant concerned. 8. Subject to the satisfaction of these pre-conditions. Order V, rule 15permits service of summons on any adult member of the family on behalf of the defendant concerned. 8. In the present case there is nothing to show that both the defendants reside as members of a joint family. There is also nothing to show that the defendant No. 2 was not likely to be found at his residence within reasonable time and that he had no agent empowered to accept service of summons for him. In such circumstances, the learned trial court correctly held that the service of summons, on the defendant No. 2, could not be proved. On the basis of the conclusion, so reached, what ought to have been doing by learned trial court is, now, the question. It is worth noticing, in this regard, that the first proviso to order DC, rule 13 states as follows : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. 9. In the present case, the decree, which has been obtained ex parte, had granted the relief of recovery of khas possession by evicting all the defendants. The decree was, thus, a joint decree the decree being inseverable, the same could not have been effectively executed by evicting defendant No. 1 alone, particularly, when it was not known as to which part of the suit property had been in the exclusive use and possession of the defendant No. 1. Consequently, the decree, in its present state, could not have been executed, when the service of summons on the defendant No. 2 could not be proved even if the decree were not set aside against the defendant No. 1. 10. Situated, thus, it is clear that the learned trial court was wholly justified in setting aside the decree as a whole and restoring the suit to the stage at which the decree was passed. This court does not find any infirmity, legal or factual, in the ultimate decision, which has been reached by the learned trial court. This revision is, therefore, not admitted and shall accordingly stand dismissed. 11. No order as to costs.