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2013 DIGILAW 235 (ORI)

Gagan Jena v. Rama Chandra Parida

2013-07-24

M.M.DAS

body2013
JUDGMENT : M. M. DAS, J.–This Writ Petition has been filed by the Petitioners challenging the Order Dated 23.7.2011 passed by the Learned Additional District Judge, Jaipur by which he confirmed the Order Dated 5.9.2000 passed by the Learned Civil Judge (Senior Division) Jaipur in rejecting the application filed by the present Petitioners under Order 9, Rule 13 C. P. C. to set aside the ex parte decree passed in T.S. No. 96 of 1997 of the Learned Civil Judge (Senior Division), Jaipur. 2. To appreciate the case of the Petitioners, it is required to state the facts in gist involved in the case which are as follows : The Opp. Party No.1 as Plaintiff filed Title Suit before the Learned Civil Judge (Senior Division), Jaipur registered as TS. No. 96 of 1997 impleading the present Petitioners as Defendants 4 & 5 & the proforma Opp. Parties 2 & 4 to 7 as Defendants 1, 3 & 6 to 8 & the husband & the father of the present proforma Opp. Parties 3 & 8, i.e., one Charan Jena S/O. Bhagabat Jena as Defendant No.3 seeking decree of declaration of title & permanent injunction over the suit schedule properties. 3. Initially, the Opp. Party No.1 had filed TS. No. 190 of 1990 before the Learned Civil Judge (Junior Division) Jaipur against the Petitioners & proforma Opp. Parties. There was some settlement in the said suit out of Court for which the Opp. Party No.1 was to withdraw the suit. It is the case of the Petitioners that believing in good faith, the Petitioners did not proceed with the suit as the matter was compromised outside the Court. However, the Opp. Party No.1 instead of withdrawing the suit, proceeded with the suit & amended it by converting it to a suit for declaration of title along with a prayer for permanent injunction. For want of pecuniary jurisdiction, the suit was withdrawn & again filed before the Learned Civil Judge (Senior Division), Jaipur which was registered as TS. No. 96 of 1997. It further appears from the facts of the case that the Petitioners also filed TS. No. 268 of 2002 against the present Opp. Party No.1 as Defendant No.1 & the Petitioner No.1 was looking after that suit on behalf of the Petitioner No.2. TS. No. 96 of 1997 was ultimately decreed ex parte. No. 96 of 1997. It further appears from the facts of the case that the Petitioners also filed TS. No. 268 of 2002 against the present Opp. Party No.1 as Defendant No.1 & the Petitioner No.1 was looking after that suit on behalf of the Petitioner No.2. TS. No. 96 of 1997 was ultimately decreed ex parte. Pursuant to the ex parte Order Dated 5.5.2000 passed against the Petitioners & the proforma Opp. Parties, who were Defendants therein, a decree on such ex parte order was also drawn up on 15.9.2000. The Petitioners filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree on 27.10.2005 which was registered as Misc. Case No. 236 of 2005 along with an application under Section 5 of the Limitation Act to condone the delay. The ground taken in the application under Order 9 Rule 13 C.P.C. was that no summonses were served in the suit on the Defendants. Hence, there being no service of summons, the ex parte decree was passed behind their back. 4. An objection was filed to the said Misc. Case by the Opp. Party No.1 disputing the assertions made therein &, inter alia, stating that notice was duly served on the Petitioners & despite knowledge, they did not contest the suit & their claim is barred by time. One witness from each of the side was examined before the Learned Civil Judge (Senior Division), Jaipur, who thereafter hearing the parties rejected the application by his Order Dated 6.8.2007. The Learned Civil Judge, from the records, found that, an order was passed that summons as against the present Petitioners is held sufficient. It was also admitted by the Petitioners that originally though the suit was filed before the Learned Civil Judge (Junior Division), Jaipur, but subsequently the suit was brought before the Learned Civil Judge (Senior Division), Jaipur after the amendment. The Learned Court also found the service of summons on the Petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. The Learned Court also found the service of summons on the Petitioners satisfied the law, as envisaged under Order 5, Rule 12 CPC. He also discussed Rule 15 of Order 5, which provides that where the Defendant is absent from his residence at the time of serving the summons sought to be effected on him at his residence & there is no likelihood of his being found at the residence within a reasonable time & he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. According to Rule 17 of Order 5, when the party refuses to sign the acknowledgment or where the serving officer, after using all due & reasonable diligence, cannot find the Defendant, who is absent from his residence & there is no likelihood of his being found at the residence within a reasonable time & there is no agent empowered to accept the service of summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain, & shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy with the circumstances under which he did so, & the name & address of the persons (if any) by whom the house was identified & in whose presence, the copy was affixed. 5. In the instant case, the Petitioners have claimed that they used to work in their working place quite away from the place of their residence. The summons available on record disclosed that it was served on refusal & affixture. The endorsement given by the Process Server discloses that summon was offered to the Defendant No.4 i.e., the Petitioner No.1 who refused to receive the summons. A petition was filed by the Defendants 4 & 5, who are the Petitioners before this Court & it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The endorsement given by the Process Server discloses that summon was offered to the Defendant No.4 i.e., the Petitioner No.1 who refused to receive the summons. A petition was filed by the Defendants 4 & 5, who are the Petitioners before this Court & it has been mentioned in the Misc. Case petition that they have jointly contested the suit. The Learned Trial Court relied upon the decision in the case of Damodar Patnaik v. Kashinath Subudhi, 29 (1963) CLT 607, wherein it was held that after Court records an order, it is incumbent on the applicant to examine the Process Server & to get a statement from him that summons were never offered to them & further found that it was seen that Defendant No.4 (Petitioner No.1) in the facts of the case can be held to be an adult member of a family being the brother of Defendant No.5 (Petitioner No.2), who came to know from the Lawyer engaged in T.S. No. 268 of 2002 on their behalf where they are Plaintiffs that a written statement has been filed in the said suit by the Opp. Party No.1 herein disclosing that T.S. No. 96 of 1997 has been decreed ex parte & this he knew in the year 2003. But the Misc. Case for setting aside the ex parte decree was filed in the year 2005 which was hopelessly barred by time & such delay has not been explained by the Petitioners. 6. On the above ground, the Learned Civil Judge (Senior Division) dismissed the application against which the Petitioners carried Misc. Appeal No. 35 of 2007 which was disposed of by the Learned Additional District Judge, Jaipur by his Order Dated 23.7.2011. The Learned Appellate Court went further to examine the law on the point & dealing with the contentions of the Petitioners that it was for the Opp. Appeal No. 35 of 2007 which was disposed of by the Learned Additional District Judge, Jaipur by his Order Dated 23.7.2011. The Learned Appellate Court went further to examine the law on the point & dealing with the contentions of the Petitioners that it was for the Opp. Party No.1 to summon the Process Server to prove that the summons were duly served on them negatived such plea by relying upon the decision in the case of Damodar Patnaik (supra), where this Court laid down that under Order 9, Rule 13 CPC, the onus is on the applicant to satisfy the Court that the summon was not duly served & mere denial as against the orders of the Court may not be sufficient to discharge the onus, when positive evidence in support of the plea of denial could be available. If the Process Server is called & he supports the case of the Defendants, then the effect of previous order of the Court accepting sufficiency of service is whittled down, came to a finding that the Learned Trial Court rightly held that the initial onus lay on the Petitioners to prove that the summons were not duly served on them by summoning the Process Server. If the Process Server in his examination-in-chief supports the defence case that he personally did not know the Defendant, who was identified by either the Plaintiff or his agent, cross-examination is not necessary, but if the process Server adheres to his report, it is open to the Defendant to take permission of the Court under Section 154 of the Evidence Act for cross-examination & opportunity for cross-examination is to be freely granted & granting of such permission does not amount to pre-judging by the Court the veracity of the witness. (See Nebti Mandal & others v. Emperor, AIR 1940 Patna, 289). The Learned Appellate Court also took note of the fact that the Trial Court verified the materials on record, while holding that summons were served on them as per the provisions of Order 5, Rule 17 CPC. He also found that the petition was hopelessly barred by time & there is no sufficient explanation for the delay as it was admitted by the PW. 1 that he came to know about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No. 268 of 2002, who informed that the Opp. He also found that the petition was hopelessly barred by time & there is no sufficient explanation for the delay as it was admitted by the PW. 1 that he came to know about the ex parte decree in the year 2003 from his Lawyer engaged in T.S. No. 268 of 2002, who informed that the Opp. Party No.1, who is a Defendant No.1 in the suit, has filed the written statement stating that T.S. No. 96 of 1997 has been decreed ex parte. 7. On considering the findings of the Learned Courts below on facts as well as law, I find that there is absolutely no reason to interfere with the said order by exercising jurisdiction of this Court either under Article 227 or 226 of the Constitution of India. 8. The Writ Petition being devoid of any merit stands dismissed. Petition dismissed.