Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 324 (PAT)

Baharan Yadav v. Hari Charan Yadav

2013-03-08

JYOTI SARAN

body2013
JUDGMENT 1. This application is directed against the order dated 27.6.2006 passed by learned Additional District Judge, F.T.C.-1, whereby the learned Court below has been pleased to allow the miscellaneous appeal preferred by the defendant-opposite party under Order 43 Rule 1(d) of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) bearing Misc. Appeal No. 20 of 2004 and has set aside the order dated 24.7.2004 passed by learned Sub Judge-Ist, Siwan dismissing Misc. Case No. 3 of 2003 filed by the defendant under Order 9 Rule 13 of the Code and after setting aside the ex parte judgment and decree passed in Title Suit No. 231 of 2002 has restored the suit to its original file. 2. The petitioner who is a plaintiff in the Court below, filed the suit in question giving rise to Title Suit No. 231 of 2002 for declaration of title and cancellation of sale deed dated 5.6.2002. The summons were issued in the case to the sole defendant-opposite party and the trial Court being satisfied by the service of summons and upon non-appearance of the sole defendant-opposite party proceeded to decide the suit ex-parte and which was decreed in favour of the plaintiff by judgment and decree dated 21.12.2002. The sole defendant on grounds of absence of knowledge about the suit and non-service of summons so issued, preferred a miscellaneous case under Order 9 Rule 13 of the Code giving rise to Misc. Case No. 3 of 2003 but the same was dismissed by order dated 24.7.2004. Being aggrieved, the defendant preferred an appeal under Order 43 Rule 1(d) of the Code giving rise to Misc. Appeal No. 20 of 2004 and which was allowed by the impugned order dated 27.6.2006 and hence the present civil revision application. 3. This civil revision application was admitted by this Court by order passed on 16.7.2009 and Lower Court Records have been summoned. 4. I have heard Mr. Shubhesh Pandey, learned counsel for the petitioner and Mr. Dronacharya, learned counsel appearing for the sole defendant-opposite party. 5. Mr. Pandey, learned counsel with reference to the order passed by the trial Court, submits that an opinion on a service of summons is a finding of fact and the trial Court would be the best Judge on the issue as to whether the summons were validly served or not on the sole defendant. 5. Mr. Pandey, learned counsel with reference to the order passed by the trial Court, submits that an opinion on a service of summons is a finding of fact and the trial Court would be the best Judge on the issue as to whether the summons were validly served or not on the sole defendant. It is with reference to the finding of the trial Court present in paragraphs 18 and 19 of the order, submitted that the trial Court upon appreciation of the evidence available on record as to the service of summons, has recorded satisfaction on the same and has also taken note of the fact that since the defendant never chose to pray for expert opinion on the thumb impression hence the charge of fraud is not proved. It is stated that the trial Court thus appreciating the evidence available on record has dismissed the case. It is stated that in view of the clear finding given by the trial Court, the opinion expressed by the appellate Court in the appeal is in fact overriding the evidence available on record and thus is unsustainable. It is stated that an allegation of fraud is not only to be pleaded but has to be proved. Learned counsel in support of his submission has relied upon a judgment of the Supreme Court reported in 2005(1) PLJR SC 21 (A.C Ananthaswami & Ors. Versus Boraiah(D) by Lrs.). 6. The arguments of learned counsel for the petitioner have been contested by Mr. Dronacharya learned counsel appearing for the defendant-opposite party. With reference to the order passed by the trial Court it is submitted that despite clear evidence on record where the service of summons have been denied and the defendant has also disputed his thumb impression, yet the trial Court has proceeded to disbelieve the evidence and has proceeded to record its satisfaction on the summons. It is stated that even where the process server deposed regarding service of summons on the sole defendant and identified the left thumb impression as being that of the sole defendant, the moment one of the witnesses to the summons denied knowledge of any such summons as also signature thereon, it was the duty of the trial Court to hold an enquiry to ascertain the truth in the depositions. It is submitted that the trial Court instead of doing so has in fact, rejected even the denial of the defendant to his left thumb impression. It is with reference to the judgment reported in 2001(1) PLJR 428 (Parshuram Pathak vs. Smt. Shivkumari Kuer & Ors.) more particularly, with reference to paragraph 5 of the judgment submitted that petitions filed under Order 9 Rule 13 have to be considered liberally. 7. I have heard learned counsel for the parties and have perused the materials on record. 8. The only issue which requires to be considered in a matter arising from a proceeding under Order 9 Rule 13 of the Code is whether or not the allegation of fraud set out in the matter of service of summons is established by the defendant or is a ploy and malafide attempt to delay a proceeding. In so far as the present case is concerned, the order of the trial Court is on record and the finding recorded in paragraph 17 of the order is quite relevant. The trial Court has taken note of the report of the process server that he met the defendant who after taking the notice has put his left thumb impression. The trial court has also noted that there are two witnesses to the service of summons namely, Umashankar Yadav and Jaiprakash Choudhary and whose signatures were found in the service report. The trial Court has also taken note of the fact that out of the two witnesses on the service of summons one Uma Shanker Yadav son of Kapildeo Choudhary was not examined in the proceeding and the other witness Jai Prakash Choudhary son of Shanker Choudhary who was examined as applicant witness No.2, specifically denied any such service of summons in his presence as well as denied his signatures on the summons. The said witness has also deposed that he is an illiterate and does not know how to sign. Even on the deposition the said witness has put his thumb impression. In addition thereto, the very denial of the thumb impression by the defendant on the service, was sufficient to take expert advice on the same. On the contrary, the trial Court has charged the defendant himself of not getting the thumb impression compared by an expert. Even on the deposition the said witness has put his thumb impression. In addition thereto, the very denial of the thumb impression by the defendant on the service, was sufficient to take expert advice on the same. On the contrary, the trial Court has charged the defendant himself of not getting the thumb impression compared by an expert. It is in the aforementioned eloquent circumstances that the appellate Court has held that the findings of the trial Court is perverse and contrary to law. It is by now well settled that the very basis of maintaining Order 9 Rule 13 of the Code is in establishing fraud practiced by the plaintiff in obtaining an ex parte decree. The defendant had denied his signature on the service report. It was within the domain of the trial Court to have satisfied himself about the thumb impression or at least give his opinion thereon but the trial Court neither sought an expert advice nor there is any opinion whether the left thumb impression as appearing on the service report matches that of the defendant. 9. In the aforementioned circumstances, there could not have been any other conclusion than as drawn by the appellate Court below. It has always been an endeavour of the Courts to ensure a fair trial unless the Court is of the opinion that the defendant has been acting malafide to delay the suit. 10. For the reasons aforesaid, I am not persuaded to interfere with the order passed by the appellate Court below. This application is accordingly, dismissed but in the circumstances there shall be no order as to costs. 11. Before parting with the judgment I would like to put on record that since this is a suit of the year 2002, the trial Court would be well advised to consider and dispose of the suit expeditiously and without giving any undue adjournment to either of the parties. 12. As the parties have appeared before this Court and are aware of the order, they cannot take a plea of absence of knowledge regarding fresh hearing in the suit in view of the appellate order as affirmed by this Court. 13. Let Lower Court Records in T.S. No. 231 of 2002, Misc. Case No. 3 of 2003 and Misc. Appeal No. 20 of 2004 be returned to the trial Court concerned forthwith, without any further delay.