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2013 DIGILAW 733 (CAL)

Raj Kumar Das v. Dibakar Nath

2013-09-26

TARUN KUMAR GUPTA

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JUDGMENT 1. This is an application under Article 227 of the Constitution of India challenging the order no.103 dated 17th January, 2012 passed by the ld. Civil Judge (Junior Division) 3rd Court at Alipore, in Misc. Case No.59/1999 arising out of T.S. No.72/1998. 2. It is the case of the petitioner that they being landlords filed said suit for eviction on the ground of default and reasonable requirement against the O.P.s. being tenants. It is further case that in spite of service of summons none of the O.P. defendants appeared and the suit proceeded exparte and ultimately decreed on 19th April, 1999. Later on one of the defendants being O.P. No.1 filed a misc. case under Order 9 Rule 13 of the Code of Civil Procedure alleging that no notice was served and that the exparte decree dated 19th April, 1999 should be set aside. The petitioner plaintiffs contested said misc. case by filing written objection denying material allegations of the same. However, ld. trial court allowed said misc. case by the order impugned dated 17th January, 2012. Being aggrieved with said order of allowing said misc. case the present revisional application has been filed. 3. Mr. Bhattacharya appearing for the petitioner plaintiffs submits that notices were sent to the O.P. defendants through process server as well as through registered post. According to him the summons sent under registered post with a/d returned with postal endorsement “not claimed” which amounts to good service. He next submits that the notice sent through process server returned unserved as the suit shop room was lying closed and that the court being satisfied issue substituted service under Order 5 Rule 20 of the Code of Civil Procedure. According to him the process server again found the suit shop room closed and execute the same by hanging. He submits that in this case the petitioner put said exparte decree for execution through execution case No.11/1999 and that ultimately it was executed by delivery of possession of suit shop room by breaking over padlock on 15th September, 1999. In support of his contention he refers a case law reported in 2011(2) ICC 769 (Ganesh Chandra Ghosh @ Ganesh Ghosh & Ors. Vs. Jita Rani Ghosh & Gita Rani Ghosh) 4. Mr. In support of his contention he refers a case law reported in 2011(2) ICC 769 (Ganesh Chandra Ghosh @ Ganesh Ghosh & Ors. Vs. Jita Rani Ghosh & Gita Rani Ghosh) 4. Mr. Basu appearing for the O.P. defendant no.1 submits that there was no materials on record to show that the summon was ever served either upon O.P. defendant no.1 or on other defendants. He submits that the father of the O.P.s was the original tenants and that during his life time he permitted the O.P. defendant no.1 to run the business in the suit shop room with an intimation to the petitioner landlords. He further submits that the report of the process server only shows that when the process server went to the locale to cause service the suit shop room was under lock and key. In this connection he draws the attention of this Court to the relevant report of the process server as well as the averments made in the application under Order 9 Rule 13 of the Code of Civil Procedure and the written objection thereof to highlight that the suit shop room was in the running condition at the relevant period and that process server only found that it was under lock and key when he went to the locale. According to him though the ld. trial court issued notice under Order 5 Rule 20 of the Code of Civil Procedure but the necessary conditions for issuance notice under that provision were not fulfilled. In support of his contention he refers case law reported in AIR 2002 SC 2370 (Sushil Kumar Sabharwal Vs. Gurpreed Singh & Ors.), 2011(4) CHN 195 (Siba Prasad Saha Vs. Gouranga Mohan Saha), 2001(2) CHN 542 (Shiw Murat Sharma Vs. 3 Allahabad Bank), AIR 1979 Andhra Pradesh 180 (Bondla Ramalingam Vs. Shiv Balasiddiah). 5. I have considered the submissions made by the ld. advocates for the parties. Perused the order impugned and the materials on record as well as the referred case laws. Admittedly, the petitioner plaintiffs filed said suit for eviction against O.P. defendants. It was claimed that the summons sent through registered post returned with the postal endorsement “not claimed” and the summons sent through the process server returned un-served as the suit shop room found under lock and key. 6. It further appears from the LCR that ld. Admittedly, the petitioner plaintiffs filed said suit for eviction against O.P. defendants. It was claimed that the summons sent through registered post returned with the postal endorsement “not claimed” and the summons sent through the process server returned un-served as the suit shop room found under lock and key. 6. It further appears from the LCR that ld. trial court issued a direction for issuance of summons by way of substituted service under Order 5 Rule 20 of the Code of Civil Procedure. The process server submitted report in connection with service of notice under Order 5 Rule 20 of the Code of Civil Procedure by stating that the shop room was found under lock and key and he made service by hanging in the suit shop room. 7. The ld. trial court has observed on perusal of materials on record that the summons were not served personally upon the petitioner defendant and that the conditions required for taking resort to under Order 5 Rule 20 of the Code of Civil Procedure were not fulfilled. Accordingly, he was of the view that the petitioner plaintiffs failed show that there was proper service of summons. 8. I have gone through the materials lying in the LCR. In the report of the process server who initially went to the locale to cause service of summons found the suit shop room under lock and key though he came to learn from the local people that the suit shop room remained open for conducting business. There is nothing to show that the procedure as laid down under Order 5 Rule 19 of the Code of Civil Procedure was resorted to by the ld. trial court before directing issuance of further notice under Order 5 Rule 20 of the Code of Civil Procedure by way of substituted service. It is strange to find in none of the reports of the process server either under Order 5 Rule 17 or under Order 5 Rule 20 of the Code of Civil Procedure any local 4 person was cited as a witness. The postal endorsement “not claimed” has at best presumptive value of giving intimation and not coming to receive notice showing knowledge of notice. But when a person on oath alleged that no notice was ever served upon him then said presumption stand rebutted. 9. The postal endorsement “not claimed” has at best presumptive value of giving intimation and not coming to receive notice showing knowledge of notice. But when a person on oath alleged that no notice was ever served upon him then said presumption stand rebutted. 9. In the case of Ganesh Chandra Ghosh (supra) one of the Hon’ble Judges of this Hon’ble Court held that when an exparte decree was satisfied by execution then there is no scope of setting aside through an application under Order 9 Rule 13 of the Code of Civil Procedure. With due respect, I beg to differ on this score. If this proposition is accepted then it will amount that even if a party manage to obtain an exparte decree by suppressing summons even then the same cannot be set aside under Order 9 Rule 13 of the Code of Civil Procedure simply on the ground that the said decree is satisfied through execution. It is against the principle of natural justice. 10. The overall impact of the judgments referred by the ld. advocate for the O.P. defendant no.1 is that the Court should be satisfied upon the service of summons and then only there may be a direction for issuance of summon by way of substituted service under Order 5 Rule 20 of the Code of Civil Procedure. It was further held in those cases that only after the court is fully satisfied that the summon could not be served upon the defendant in the ordinary way and that the defendant was avoiding service then only there can be an order of issuing summons through substituted service under Order 5 Rule 20 of the Code of Civil Procedure. In the case in hand, admittedly, there is no such observation of the ld. trial court on this score. 11. In view of the discussions as made above, I am of the opinion that the order impugned does not call for any interference by this Court. 12. The revisional application is hereby disposed of accordingly. 13. No order as to costs. 14. Urgent Photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.