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2012 DIGILAW 1679 (PAT)

Shree Charan Paswan v. Ram Prit Paswan

2012-12-12

JYOTI SARAN

body2012
ORDER Heard Mr. Rajesh Ranjan, learned counsel appearing on behalf of the petitioner and Mr. D.P. Tiwary, learned counsel appearing for the plaintiff-respondents. 2. This application under Article 227 of the Constitution of India has been filed questioning the order dated 25.11.2011 passed by learned Sub Judge-VII, Vaishali at Hajipur in Title Suit No. 144 of 2002, whereby the learned court below has been pleased to reject the prayer made by the petitioner for recall of the order dated 14.09.2005 passed by the court below whereunder the matter had been fixed for ex parte hearing. 3. The suit in question has been filed by the plaintiffs for declaration of their title in respect of the suit property which is a Plot bearing No. 241, Khesra No. 649 having an area of 30 decimals and Plot No. 650 having an area of four decimals situated in Mauja Mahua Mukundpur, Circle-Mahua in the district of Vaishali. The petitioner is one of the substituted legal heir of defendant Sahdeo Paswan. Perusal of the order sheet manifests that the learned trial court has recorded the service of summons on the petitioner and his mother by ordinary process and awaiting the return of the registered notice sent by registered post by order dated 27.7.2004. By a subsequent order passed on 25.8.2005 the learned trial court while confirming the service of notice upon non-return of the notices sent under registered post and upon recording satisfaction regarding service of summons by ordinary process confirmed the service of notice and by a subsequent order passed on 14.09.2005 the matter was fixed for ex parte hearing. 4. It is the case of the petitioner that he is in service outside the State and became aware of the proceedings only on a recent visit made to the village on 20.10.2011 and whereafter he got the records examined and filed the application in question praying for recall of the order of ex parte hearing and which has been rejected by the order impugned. Learned counsel for the petitioner with reference to the copy of the summons placed at Annexure-3 submits that the service of summons has been attested by the plaintiff Ramprit Paswan and one of the witness is another plaintiff namely Harish Chandra Paswan. Learned counsel for the petitioner with reference to the copy of the summons placed at Annexure-3 submits that the service of summons has been attested by the plaintiff Ramprit Paswan and one of the witness is another plaintiff namely Harish Chandra Paswan. It is submitted that the learned trial court without appreciating that the report of service of summons was collusive and inspite of unserved registered notice, has confirmed service of summons which is not sustainable. It is stated that in the circumstances the learned trial court ought to have allowed the prayer. 5. The prayer has been contested by Mr. Tiwary, appearing for the plaintiff-respondents who submits that the parties of the suit are coming from a common ancestor and thus it is unbelievable that the petitioner was unaware of the proceedings especially when his father had contested the matter up to this Court in a separate proceeding. 6. I have heard learned counsel for the parties and have perused the materials on record. Precluding a party from contesting a suit is a stern step and cannot be made in a routine manner. A decision in this regard is only subject to confirmation of service of summons and which forms the basis for passing such order. It is not in contest that the unserved registered notices were never received in the court below. The plaintiffs have also not brought on record any document to demonstrate that the petitioner had any prior knowledge of the proceedings except a presumptuous submission of possessing knowledge coming from a common ancestor. The copy of the summons service report placed at Annexure-3 confirms the submission of learned counsel about being collusive. No doubt, there has been a considerable delay in the petitioner approaching the court with the prayer made in the application seeking recall of the order of ex parte hearing but this Court taking into consideration the circumstances emanating from the copy of the summons placed at Annexure-3 is of the opinion that the service does not satisfy the prerequisites underlying Order 5 Rule 17 of the Code of Civil Procedure inasmuch as the identification has been made by the plaintiff Ramprit Paswan and one of the witnesses is his brother who also is a plaintiff before the Court below, namely, Harish Chandra Paswan. The service of summons thus definitely suffers from serious infirmity and coupled with the non-return of the unserved registered notices, the plea of the petitioner cannot be rejected outrightly. Moreover the stand taken by the petitioner of serving outside the State has not been contested nor any thing has been brought on record to disbelieve the statement. The circumstances are sufficient to allow the prayer of the petitioner and accordingly the order dated 25.11.2011 together with the order dated 14.9.2005 is set aside. Learned trial court would proceed accordingly. The defendant shall file his written statement within four weeks from today. Learned trial court would be well advised to consider and dispose of the suit expeditiously without giving undue adjournment of either of the parties. 7. This application is allowed.