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2015 DIGILAW 1071 (GAU)

JUBEDA KHATUN v. PRABIN DEKA

2015-08-21

RUMI KUMARI PHUKAN

body2015
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. I.H. Laskar, learned counsel for the Appellants. Also heard S.P. Roy, learned counsel for the respondents. 2. This appeal under Section 104(1)(i) read with Order 43, Rule 1 (d) of the Code of Civil Procedure, 1908 filed by the Appellants/Proforma Defendants challenging the order dated 18.11.2013, passed by the learned Civil Judge, Nagaon, in Misc Case No. 123/2012, arising out of Title Suit No. 32/2006, illegally dismissing the said Misc Case filed by the Appellant under Section 5 and 14 of the Limitation Act read with Section 151 of the Code of Civil Procedure, 1908, for short, the Code, for condonation of delay in filing the petitioner for setting aside ex-parte order dated 05.10.2007 and final Decree dated 09.07.2010, passed against the appellants/defendants. 3. The contentions so raised by the appellants are that the respondents herein as plaintiffs have filed Title Suit No. 32/2006 in the Court of the learned Civil Judge, Nagaon for declaration of their right, title and interest over a plot of land measuring 32 Bighas 4 Kathas 8 Lechas covered by Dag No. 123, 124, 125, 126, 127, 128, 129, 130, 131 and 133 in Periodic Patta No. 125 of Village - Alisinga, Mouza - Lanka, in the District of Nagaon, Assam. In the said suit, the present appellant No. 1 and the predecessor of the appellant Nos. 2(a) to 2(d) were also made parties as proforma defendant Nos. 2 and 3. It is the pleaded case of the appellants that during the pendency of the trial, it was alleged that summons on behalf of the appellant No. 1 was received by one Mustt. Diluwara Begum and on behalf of Late Tahrun Nessa, predecessor of appellant Nos. 2(a) to 2(d), summons was received by herself but in fact both the Appellant No. 1 and late Tahrun Nessa did not receive any summons in respect of Title Suit No. 32/2006, and subsequently, the Suit was decided ex-parte vide order dated 05.10.2007. the respondents has filed Title Execution Case No. 4/2011 for execution of the final Decree dated 09.17.2010 and the summons was served upon the appellants on 03.05.2011. 4. the respondents has filed Title Execution Case No. 4/2011 for execution of the final Decree dated 09.17.2010 and the summons was served upon the appellants on 03.05.2011. 4. On being receipt of the summons in Title Execution Case No. 4/2011, on 25.05.2011 the appellants appeared in the said execution case and came to know for the first time about the Title Suit No. 32/2006, ex-parte order dated 05.10.2007 and the decree dated 09.07.2010. Immediately thereafter, the appellants had engaged their counsel in respect of Title Execution Case No. 4/2011 and the learned counsel for the appellants, without the knowledge of the appellants, taken adjournments on consecutive four dates. After coming to know about the adjournments, the appellants being dissatisfied with the inaction of the learned counsel, taken back the briefs and engaged a new counsel. 5. The newly engaged counsel of the appellant filed a petition being M.J. Case No. 144/2011 under Order 21, Rule 99 and 101 read with Section 151 of the Code which was not correct provision of law as provided under the Code for setting aside the ex-parte order, and accordingly, learned Court below vide order dated 10.09.2012 dismissed the said M.J. Case No. 144/2011. The appellants were came to know about the dismissal of the M.J. Case No. 144/2011 only on 19.09.2012 as the engaged counsel of the appellants did not inform the appellants about the dismissal of the M.J. Case No. 144/2011 and on 19.09.2012 itself, the appellants applied for the certified copy of the order dated 19.09.2012 and the same was procured on 24.09.2012. 6. As the learned counsel for the appellants done nothing till 25.11.2012, the appellant handed over the brief to another new counsel for filing proper application and the said counsel took five days to prepare the petition under Order 9, Rule 13 of the Code along with the Misc Case No. 123/2012 under Section 5 and 14 of the Limitation Act read with Section 151 of the Code and the same was filed on 30.11.2012. The learned Court below after hearing both the parties vide order dated 18.11.2013 dismissed the Misc Case No. 123/2012, hence the present appeal. 7. Mr. I.H. Laskar, learned counsel for the appellants submits that ex-parte order was passed by the learned Court below without serving any summons upon the appellants which is apparent from the evidence of P.W. 1 and P.W. 2, namely, Md. 7. Mr. I.H. Laskar, learned counsel for the appellants submits that ex-parte order was passed by the learned Court below without serving any summons upon the appellants which is apparent from the evidence of P.W. 1 and P.W. 2, namely, Md. Mainul Haque and Mustt. Diluwara Begum. It is further contended by Mr. Laskar that though it was alleged that the summons was received by Musstt. Diluwara Begum on behalf of the Appellant No. 1, which is not correct, and even if it is considered that such summons was received by said Smti Diluwara Begum, then also the same cannot be considered to have fulfilled the statutory requirement as provided under Order 5, Rule 15 of the Code. His further submission is that Musstt. Tahrun Nessa (since deceased), the appellant No. 2 though it was alleged that the summons was received by her by putting her thumb impression, whereas during her life-time, never received any summons in the said Title Suit No. 32/2006 and the copy of the summons as in the record is a doubtful document as the signature of the process server is illegible and the alleged thumb impression of Tahrun Nessa is appeared to be of left hand and not of the right hand, as it ought to have been. Learned counsel for the appellants further submits that the delay caused filing the appropriate petition for setting aside the ex-parte decree was due to lapses on the part of their engaged counsels and it is a settled principle of law that due to fault on the part of the engaged counsel, the concerned party should not suffer. 8. The learned counsel for the petitioner has relied upon the citation reported in (2002) 5 SCC 377 Sushil Kumar Sabharwal v. Gurpreet Singh & Anr., (2003) (3) GLT 3 Pukhrambam Budhichandra Singh v. Thokchom., (2005) (3) GLT 290 Til Bahadur Konwar v. Dilusahu., (2012) (4) GLT 453 Ajhar Ali & Ors v. Saidur Rahman @ Saidul Islam and Anr., wherein, it has been categorically that Order 5, Rule 15 CPC prescribes certain pre-conditions to be satisfied before service of summons on any adult member of the family on behalf of defendant concerned and for none fulfilment of such condition a notice cannot be deemed to be served even though notice has been served upon adult member of the family. 9. 9. In the above Ajhar Ali (Supra) and Til Bahadur Konwar (Supra), it has been held 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 summons was sought to be affected on him at his residence but there is 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 the summons on his behalf subject to the satisfaction of this pre-condition under Order 5, Rule 15 which permits service of summons on any adult member of the family on behalf of the defendant concerned. The report of process server should clearly state such grounds of his belief that the person was absent from the house at the time of attempted service and there is no likelihood of his returning within a reasonable time and that summons was delivered at adult member of the family actually residing with the person to be summoned. 10. In the case of Sushil Kumar Sabharwal (Supra), it has been held that the Court before whom the petition has been filed under Order 9, Rule 13 & 6 and Order 5, Rule 17 & 18 is filed for setting aside the ex parte decree on the ground of non service of summons on the defendant, then, the Court before exercising the discretion of passing ex parte-decree must be satisfied to that due service of summons has been proved. 11. Relevant Para -12 of the aforesaid case is quoted below as under:- "12 The provision contained in Order 5, Rule 6 CPC is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the Court depending on the given situation, The three situations are : (i) When summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the sumnmons was duly served, the Court may make an order that the suit be heard ex-parte. In the first situation, which is relevant here, when it is proved that the sumnmons was duly served, the Court may make an order that the suit be heard ex-parte. The provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being "proved" that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard ex-parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring the service of summons. Any default or casual approach on the part of the hearing and may result in a defendant suffering an ex-parte decree or proceedings in the suit wherein he was deprived or hearing for no fault of his. If only the trial court would have been conscious of its obligation cast on it by Order 9, Rule 6 CPC, the case would not have proceeded ex-parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life this litigation". 12. In the ordinary course of events, the Court of facts should have discarded the statements of process server and believing the statements of the appellant. 13. On the other hand, Mr. S.P. Roy, learned counsel for the respondents has advanced his argument solely on the ground that the learned Court below has rightly refused to condoned the delay of limitation in view of the fact that the petitioner on being unsuccessful to resist the execution has tried to defeat the execution of the decree so obtained by them on some false pretext against the engaged counsel which is not found to be true by the Ld. Court itself. 14. Court itself. 14. Referring into a decision of Hon'ble Supreme Court in Civil Appeal No. 12088 of 1996 in the case of Brahmdeo Chaudhury v. Rishikesh Prasad Jaiswal and another, reported in AIR 1997 SC 856 , it has been submitted that the petitioner can very well resist the execution by taking re-course to the Order 21, Rule 97 & 99 of the CPC and reference has been made to the Para-5 of the aforesaid Judgment which is reproduced as below:- "5 In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97 Sub-rule (1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree". 15. Referring into the case of Shreenath & Anr v. Rajesh & Ors., reported in AIR 1998 SC 1827 it has been submitted that third party in possession of property claiming independent right as a tenant not a party to a decree under execution can resist such decree seeking adjudication of his objection under Order 21, Rule 97 . The person holding possession of immovable properties on his own right can object in a execution proceeding under Order 21, Rule 97 and give adjudication when he is sought to be dispossessed by a decree holder. 16. Basing upon the above observation and pointing towards the facts of the case, it has been argued that the best course to the petitioner to raise objection in a execution proceeding has already been adjusted by the petitioner and at such flag end, the petitioner cannot take re-course to move for a proceeding under Order 9, Rule 13 CPC by condoning the delay on the ground of moving the case in a wrong proceeding. According to the learned counsel for the respondents, there is nothing to interfere into the orders so passed which is under challenge. 17. I have heard the rival submission of both the parties and considered the relevant case law's referred by the parties as well as the documents so filed with regard to service report etc. 18. In the given case, it is to be noted that the petitioner, herein, is in fact not a third party to the case in a sense that they are made proforma defendant in the said case in T.S. 32/2006 as because one portion of the disputed land was purchased by these proforma defendant but as they did not contest the case for non service of process upon them (according to the petitioner), the case has been decided ex-parte. According to the petitioner they came to know about such ex-parte decree only when the respondent/decree holder went for execution of the case and thereafter, as per the advice of the engaged counsel filed objection in the said execution case, which was, however, dismissed by the learned executing Court and it was not intimated to the petitioner. Ultimately the petitioner went to the another Advocate who advised them to move a petition under Order 9, Rule 13 CPC to set aside the ex-parte decree and in the meantime, the time has elapsed, so the petitioner moved a petition for condoning the delay under Section 4 & 5 of the Limitation Act. It has been contended on behalf of the petitioner, that, they have a serious issue to contest and they will be deprived of his legal right, if not allowed to contest the suit. 19. As it appears from the impugned order passed by the learned Trial Court, it has taken into consideration the averment so made by the petitioner that his engaged counsel has taken steps in the Execution case No. 4/2011 as well as also another Misc. Case No. 144/2011 under Order 21, Rule 90 & 101 read with Section 15 CPC filed on 21.11.2011, and it is hold that the petitioner has now taken a false plea of wrong advice of counsel and has refused to condone the delay for filing a petition under Order 9, Rule 13 of the CPC. Case No. 144/2011 under Order 21, Rule 90 & 101 read with Section 15 CPC filed on 21.11.2011, and it is hold that the petitioner has now taken a false plea of wrong advice of counsel and has refused to condone the delay for filing a petition under Order 9, Rule 13 of the CPC. Similarly the Court has also held that notice upon the petitioners has been duly served in the main case being Title Suit No. 32/2006. So non service of summon is also a false pretext. 20. Now, in the instant case, though it is stated that one Smti. Diluwara Begum received the summon on behalf of the appellant No. 1 but in absence of proper report of the process server the same cannot be considered to be proper service as it has not fulfil the requirement of the provision of Order 5, Rule 15 of CPC as referred above. Similarly, the tumb impression of LTI has been taken which should be of RTI. So the findings of the Court below on the service of process upon the appellant is erroneous. On the other hand, the fact that the petitioner initially filed objection in the execution proceeding is also can be termed as proceeding in not proper forum and in the legal parlance forum of a case is always choose by the engaged counsel not by the litigant himself and as such litigant should not be allowed to suffer for the conduct of the counsel. 21. It is pertinent to note that the present appellant were made a proforma defendant in the main suit and from the plaint itself it reveals that the suit land has been mutated in the name of the proforma defendant in the revenue records (vide Para-7 of the plain) and in that sense the proforma defendant are necessary party to the suit and interest of justice also demand that a case should be decided by giving a scope to all the parties to take part in the proceeding. In (2012) 12 SCC 693 B. Madhuri Goud v. B. Damodar Reddy while dealing with power of Court in condoning the delay under Section 5 of the Limitation Act, it has been reiterated that "sufficient cause for delay must be liberally viewed in a primitive manner to serve ends of justice. In (2012) 12 SCC 693 B. Madhuri Goud v. B. Damodar Reddy while dealing with power of Court in condoning the delay under Section 5 of the Limitation Act, it has been reiterated that "sufficient cause for delay must be liberally viewed in a primitive manner to serve ends of justice. Discretion to condone the delay should be based not on the length but on sufficient and satisfactory explanation. It has also been held that the Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they can approach the court for vindication of their rights without unreasonable delay". 22. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation. "The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay". 23. In view of all above, the appeal is allowed. The impugned order dated 18.11.2013 passed in Misc. Case No. 123/2012 arising out of T.S. 32/2006 is hereby set aside with a direction to decide the petition so filed by the appellant under Order 9, Rule 13 of the CPC as per law. 24. Parties are directed to appear before the concerned Court to receive further order on 22.09.2015.