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2015 DIGILAW 54 (GAU)

Arati Gogoi & Ors. v. Dina Kanta Saikia & Ors.

2015-01-20

MANOJIT BHUYAN

body2015
1. Time and tide waits for none. Worse still, if a person is not alive to the need of the hour and allows his valuable rights to the swept away from under the feet. This case is such an illustration. 2. Challenge by the 5(five) petitioners is to the order dated 28.11.2006 passed by the learned Munsiff No.2, Dibrugarh in Title Suit No.88/2006 (originally numbered as Title Suit No.49/95) whereby the Petition No. 1726/2004 dated 18.10.2004 filed by the petitioners herein with prayer to vacate the order of proceeding of the suit ex-parte against them and to accept their written statement had been rejected. 3. This Court is now called upon to determine the legality and validity of the said order dated 28.11.2006 in the facts and circumstances of the case. Without adverting to the facts and rival merits involved in the case in great details, suffice it to say that the Title Suit was brought about by the Respondent No.1/Plaintiff, Sri Dina Kanta Saikia for declaration of title, confirmation of possession, rectification of sale deed and for perpetual injunction in respect of lands described in the Schedules to the plaint. In the said Title Suit the present Petitioner No.1, Smti Arati Gogoi was arrayed as Defendant No.11. Likewise, the Petitioner No.2, Smti Seema Gogoi as Defendant No.12; Petitioner No.3, Smti Meetali Gogoi @ Madumita Gogoi as Defendant No.13; Smti Sagarika Gogoi as Defendant No.14 and Sri Ajoy Gogoi as Defendant No.15 respectively. 4. As we are concerned with the case put up by the 5(five) revision petitioners, as such, the impugned order dated 28.11.2006 is being tested vis-à-vis the claims of the said petitioners arrayed as Defendant Nos. 11 to 15 in the Title Suit. At the outset it would be pertinent to state that as appearing from the records, none of the petitioners/ defendant nos. 11 to 15 had participated in the suit proceedings, not to speak of having filed written statements or cross-examining the plaintiff witness. 5. The records of the case clearly indicate that in so far as Petitioner Nos. 1,2,3 and 4 are concerned, so arrayed as Defendant Nos. 11,12,13 and 14 in the suit, each of them had refused to accept summons and there are postal endorsements in the return envelopes to the effect “ Refused Rtd to sender”, all dated 30.1.1997. 5. The records of the case clearly indicate that in so far as Petitioner Nos. 1,2,3 and 4 are concerned, so arrayed as Defendant Nos. 11,12,13 and 14 in the suit, each of them had refused to accept summons and there are postal endorsements in the return envelopes to the effect “ Refused Rtd to sender”, all dated 30.1.1997. The order of the learned Civil Judge No.1 (Jr.Division), Dibrugarh dated 28.5.1997 clearly records such refusal of the Petitioners Nos. 1,2,3 and 4 to accept summons, whereupon order was passed for proceeding with the case ex-parte against them treating the summons as duly served in view of Order 5 Rule 19(A)(2) of the Code of Civil Procedure (as existing prior to its omission by the amendment brought about by Act 46 of 1999). In the case of Petitioner No.5/Defendant No.15, the order of the learned Court below dated 2.9.1997 clearly indicates that the plaintiff had duly submitted the postal receipt before the Court and since the A/D Card had not been received back, summons was treated to have been served upon the said petitioner no.5/defendant no.15. By subsequent order dated 20.11.1998 the suit was posted for ex-parte hearing, fixing 15.12.1998. 6. The Title Suit was ordered and decreed as dismissed without cost vide order dated 6.1.1999, whereupon Title Appeal No.2/1999 was preferred by Sri Dina Kanta Saikia before the learned Civil Judge (Sr.Division), Dibrugarh. Pertinent to mention that the petitioners herein, apart from Smti Meetali Gogoi @ Madhumita Gogoi, Petitioner No.3/Defendant No.13, contested the appeal. The learned Appellate Court found that none of the defendants in the original suit had filed written statement nor had cross-examined the plaintiff witness. However, upon hearing the parties, and on perusal of records the appeal was allowed on contest by setting aside the judgment dated 6.1.1999 and the decree thereunder. The suit was remanded to the learned Court below for disposal in accordance with law within a reasonable period of time after rectifying the defects as indicated at paragaraph-9 therein. Mention be made that the said paragraph -9 of the judgment and order dated 25.6.2003 was in respect of the observation that no order had been passed by the Trial Court bringing on record the names of the 3(three) heirs in place of the deceased defendant No.2. 7. Mention be made that the said paragraph -9 of the judgment and order dated 25.6.2003 was in respect of the observation that no order had been passed by the Trial Court bringing on record the names of the 3(three) heirs in place of the deceased defendant No.2. 7. On remand, the petitioners herein filed Petition No.1726/2004 on 18.10.2004 before the learned Civil Judge (Jr.Division) No.1, Dibrugarh in Title Suit No.49/1995 praying for vacating the ex-parte order against them and for accepting the written statement so filed. The said petition was duly attended to and by order dated 28.11.2006, so impugned in the present Revision Petition, the Petition No.1726/2004 was rejected. The relevant portion of the order dated 28.10.2006 passed by the learned Munsiff No.2, Dibrugarh reads as under: “I have perused the entire case-record minutely and closely and also the judgment and order dated 25/6/03 passed by the Learned Civil Judge (Sr.Divn), Dibrugarh in the Title Appeal No.2/99. On perusal of the same, I find that the contention of the defendants No.11 to 15 that the said has been remanded back for fresh trial is incorrect as the operative part of the aforesaid judgment and Order dated 25.6.06 reveals that the Appellate Court only remanded the suit for disposal in accordance with law after rectifying the defects as indicated in paragraph 9 of the said judgment and paragraph 9, the learned Civil Judge, Sr. Divn, Dibrugarh observed that the legal heirs of the deceased defendant No.2 was not substituted, rather the suit remanded unattended by the concerned Presiding Officer. Hence, it cannot be construed that the suit has been remanded back for fresh trial but to rectify the fact that the legal heirs of the deceased defendant no.2 be impleaded as party and proceed with the case in accordance with law. The said Judgment and Order had not mentioned anything as to the participation of the defendants No.11 to 15 in the suit after it is remanded back. Moreover, on a bare perusal of the order-sheets, I have found that vide order dated 28.5.97, the then Munsiff passéd order for proceeding ex-parte as against the defendants No. 4,11,12,13 and 14 on the ground that the registered post summons returned with report that the said defendants refused to accept the same and the order was passed in view of Order 5 Rule 19(A)(2) of the old CPC. As regards the defendant No.15, summons was sent to him through post and postal receipts was submitted before the Court as is evident from the order dated 7.7.97 and since A/D card not returned, then summons is deemed to have been served as per the provisions of Order 5 Rule 9 of the amended CPC 2002. From all the facts, it is evident and clear that the court rightly passed the ex-parte order against the defendants No.11 to 15 and as the petition No.1726/04 was filed for vacating the ex-parte order the same is out rightly rejected in accordance with the CPC and the law of limitation. The petition is thus barred by law of limitation filed after a gap of about 7 years. Accordingly, the petition No.1726/04 stands rejected. The W/S is not accepted. Plaintiff is directed to take fresh steps on the substituted legal heirs of the deceased defendant No.2 within 3 days through ordinary process as well as registered post with A/D. Fix 20.12.06 for SR/W/s.” 8. As the proceedings involving issue and service of summons before the trial Court occurred prior to the Code of Civil Procedure (Amendment Act) 1999 (46 of 1999), the law obtaining on that date is being looked into. For ready reference Order 5 Rule 19-A prior to its omission read as under: “19-A. Simultaneous issue of summons for service by post in addition to personal service.-(1)The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain: Provided that nothing in this sub-rule require the Court to issue a summons for service by registered post, wherein, in the circumstances of the case, the Court considers it unnecessary. (2) When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declared that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reasons, has not been received by the Court within thirty days from the date of the issue of the summons.” As alluded to above, the summons sent by registered post, acknowledgment due upon the petitioners No. 1 to 4, being defendant Nos.11 to 14 in the original suit, were received back by the Court with the endorsement of the postal employee to the effect that the said defendants had refused to take delivery of the postal articles containing the summons when tendered to them. In such eventuality, the order dated 28.5.1997 was passed taking presumption of service of notice upon the said defendants. In respect of the petitioner No.5/defendant No.15, similar presumption was taken treating the summons as being duly served when the A/D Card had not been received back by the Court. 9. Order 8 Rule 1(1) of the CPC, prior to its substitution by the Code of Civil Procedure (Amendment Act, 2002), reads as under: “1. Written statement.- *[(1)]The defendant [***] shall at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.” 10. There is no manner of doubt that due declaration was made by the Court to the effect that summons had been duly served on the defendants. Further, there is nothing on record to show that the petitioner as defendants No. 11 to 15 had presented written statement of their defence at or before first hearing or within any such time as Court may have permitted. 11. Further, there is nothing on record to show that the petitioner as defendants No. 11 to 15 had presented written statement of their defence at or before first hearing or within any such time as Court may have permitted. 11. The learned counsel for the petitioners placed reliance on Subir Kumar Dey-vs- Joya Dey @ Joya Mahajan, reported in 2006 (2)GLT 298 and in the case of Salem Advocate Bar Association ,T.N. -Vs- Union of India, reported in (2005) 6 SCC 344 to say that on the doctrine of harmonious construction of the provisions of Order 8 Rule 1 and Rule 10 of the Code of Civil Procedure , the learned Court below ought to have allowed the petitioners /defendants No. 11 to 15 to file written statement. With respect to the judgment in Subir Kumar Dey (supra), relied upon by the petitioners, the same is wholly misplaced in the facts and circumstances of the present case. In so far as the case of Salem Advocate Bar Association ,T.N. (supra) is concerned, the Hon'ble Apex Court while holding provisions of Order 8 Rule 1 CPC as directory, in the same breath made it clear that the order extending time to file written statement cannot be made in routine and time can be extended only in exceptionally hard cases. In the solemn words of the Hon'ble Apex Court as extracted from paragraph 21 of the judgment, the same reads as under: “21…………………………………There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provisions of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.” 12. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.” 12. The relevant provisions in Order 5 as well as in Order 8 of the CPC, prior and post Amendment, do not come to the rescue to the petitioners, not to speak of the case laws relied upon by the learned counsel for the petitioners. On facts and looking at the indifferent and casual approach of the petitioners and utter disregard to the law of the land, as indicated above, no relief as prayed for can be granted. 13. As a result, this Court finds no merit in the Revision Petition and the same is accordingly dismissed. The order dated 28.11.2006 passed by the learned Munsiff No. 2, Dibrugarh in Title Suit No.88/2006 (Title Suit No.49/1995 being the original suit) does not call for interference of this Court. The learned Court below is directed to proceed with the suit in accordance with law immediately upon receipt of the case records from this Court. No costs. 14. I have heard Mr. G.P. Bhowmik, learned senior counsel for the petitioners assisted by Mr.R. Hazarika, Advocate. None has appeared to represent the respondents. Case records be transmitted back to the appropriate Court below forthwith.