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2015 DIGILAW 577 (ORI)

Laxmidhar Biswal v. Duryodhan Pradhan

2015-10-07

D.DASH

body2015
JUDGMENT : D. Dash, J. 1. This appeal has been filed challenging the judgment and decree passed by the 1st Additional District Judge, Puri in RFA No. 22-66 of 2011/2010. The appeal was filed against the ex parte judgment and decree dated 20.05.2010 and 22.06.2010 respectively passed by the learned Civil Judge (Junior Division) Puri in C.S. No. 159 of 2004. The respondent as the plaintiff had filed C.S. No. 159 of 2004 in the court of learned Civil Judge (Junior Division), Puri for declaration of his right, title, interest and possession over the suit land with further declaration that the defendant has no interest over the same and also with the prayer of permanent injunction. The suit having been decreed ex parte, the defendant in the said suit, as the appellant had filed the appeal as above. That appeal having also been dismissed and therefore this move is before this Court by filing the second appeal. 2. The appellant in the said appeal challenges the said ex parte judgment and decree passed by the trial court on the ground that while rendering the findings as regards the fight, title and interest of the plaintiff-respondent in respect of the suit land, the trial court had not taken into account the factum of initiation of encroachment case bearing No. 25 of 2005 as also the report of the local Revenue Inspector submitted in the said proceeding. The next ground taken is that it has not been established that the lessee in the said waste land lease case and the appellant are one and same person. It was also raised as a ground of attack in the appeal that the defendant-appellant was not duly served with the notice of the suit and the suit accordingly had been disposed of, without following the legal procedure as the defendant-appellant has not been given the scope to contest the suit for which the judgment and decree cannot stand to legal scrutiny. 3. The lower court having gone to discard the second ground, as contended by the defendant-appellant has also gone to hold that the defendant-appellant having appeared in the suit as well as in the miscellaneous proceeding arising out of the suit by filing vakalatnama, the same has to be accepted as his appearance in the suit. 3. The lower court having gone to discard the second ground, as contended by the defendant-appellant has also gone to hold that the defendant-appellant having appeared in the suit as well as in the miscellaneous proceeding arising out of the suit by filing vakalatnama, the same has to be accepted as his appearance in the suit. So according to it, non-service of notice in the original suit does not stand as a ground to hold that the suit has been disposed of behind the back of the defendant-appellant. 4. It is the settled position of law that as against an ex parte decree, the party aggrieved by the same may either file an appeal or an application under order 9, rule 13 of the Code of Civil Procedure, or an application under Section 151 of the Code in case where fraud is said to have been practiced in obtaining the said ex parte decree or in appropriate cases even by filing the separate suit, the same may be challenged. It is also the trite law that for filing an application under order 9, rule 13 of the Code in the court which passed the ex parte decree, the defendant in an appeal carried against the said ex-parte decree may well urge the point that the suit has been decided behind his back without serving notice upon him in accordance with law. 5. The lower appellate court while addressing this ground of attack has held that even though in the order sheet, the fact of appearance of the appellant in the original suit, is not so indicated but nonetheless the vakalatnama filed by the appellant-defendant can be safely treated as a memo of appearance in the original suit and non service of notice of the original suit cannot stand as an excuse for him because of his appearance in the interlocutory application which clearly goes to show his knowledge about pendency of the original suit. It has again found that the violation of any procedure cannot defeat the ends of justice for technical irregularity. 6. The appeal is admitted on the following substantial question of law: Whether the observation of the courts below to the effect that appearance of the defendant in interlocutory proceeding amounts to appearance in the suit is sustainable in law? 7. It has again found that the violation of any procedure cannot defeat the ends of justice for technical irregularity. 6. The appeal is admitted on the following substantial question of law: Whether the observation of the courts below to the effect that appearance of the defendant in interlocutory proceeding amounts to appearance in the suit is sustainable in law? 7. Adverting to the case in hand, it is seen from the lower court record that the defendant was served with the notice in the I.A. No. 148 of 2004 arising out of C.S. No. 159 of 2004, but then by filing the vakalatnama, he had entered appearance not only in I.A. No. 145 of 2004 but also in C.S. No. 159 of 2004 on 14.10.2004 and on that date, learned counsel for the appellant had filed an application in the said Interim application for grant of time to file the necessary objection. Thereafter, by filing the objection in that interim application in the matter of a proceeding under order 39, rule 1 and 2, read with section 151 of the Code participated in the final hearing of the same. The interim application was allowed temporarily restraining the defendant-appellant from interfering with the peaceful possession of the plaintiff-respondent. After disposal of the said interim application, the suit proceeded. When the suit was fixed to 04.05.2008, the defendant had also prayed for time to file the written statement which was allowed till 22.07.2005. On that date, also another application was filed for the same purpose and time was granted till 28.10.2005 for filing of the written statement by the defendant-appellant. On the said date, defendant-appellant again filed a petition praying for further time to file the written statement. But as none moved the same, the trial court in view of the provision contained in order 8, rule 1 of the Code disallowed to grant further time to file the written statement and set the defendant ex parte. Thereafter the suit proceeded as such and the defendant-appellant abstained from appearing in the said suit any more. So finally, it was decreed ex parte by the judgment dated 20.05.2010 i.e. more than about 4 and half years after the defendant-appellant was set ex parte. 8. Thereafter the suit proceeded as such and the defendant-appellant abstained from appearing in the said suit any more. So finally, it was decreed ex parte by the judgment dated 20.05.2010 i.e. more than about 4 and half years after the defendant-appellant was set ex parte. 8. Learned senior counsel for the appellant strenuously argued that as the notice in the said suit was not served upon the defendant-appellant as provided in law, his knowledge about the suit would not simply serve the purpose. According to him, the order sheet of the trial court does not show that the court was satisfied about service of summons in either way upon the defendant-appellant and there has not been service proof under the prescribed procedure for the purpose. Therefore, according to him, the ex parte decree being passed without service of notice of the suit upon the defendant-appellant, the same is nonest and the lower appellate court ought to have held-so and remanded the matter back to the trial court for fresh disposal of the suit in accordance with law after affording due opportunity to the defendant appellant to contest the suit. In this connection, he has relied upon the decisions reported in Narendra Kishore Das v. Banamali Sahu, AIR 1951 Orissa, 312; Prafulla Chandra Deo v. Satyanarayan Chandra Deo and another, 33 (1991) OJD-533; Prafulla Chandra Deo v. Satyanarayan Chandra Deo and another, 1992 (1) OLR 277; Bishnu Charan Malla v. Sankarsan Mohapatra alias Behera and others, 2003 (I) OLR 61 ; Union of India v. Shri Surgan Singh and another, 2003 (II) OLR 11 , Swastik Agency and two others v. S.B.I., and others, 2009 (II) OLR 201 ; and lastly M.K. Pradad v. P. Arunugam, AIR 2001 SC 2497 ; and Improvement Trust, Ludiana v. Ujaghar Singh and others, 2010 (II) CLR-SC-240. Learned counsel for the respondent vehemently refutes the submission of the learned counsel for the appellant. According to him, the facts and circumstances in which all those decisions have been rendered are quite different and well distinguishable. He further submits that here the defendant-appellant having entered appearance in the suit and thereafter having abstained from remaining present and thus having allowed the suit to be decreed ex parte cannot now fall back upon the plea that the service of notice in the suit was not sufficient upon him being not served in accordance with law. 9. He further submits that here the defendant-appellant having entered appearance in the suit and thereafter having abstained from remaining present and thus having allowed the suit to be decreed ex parte cannot now fall back upon the plea that the service of notice in the suit was not sufficient upon him being not served in accordance with law. 9. Having carefully gone through the decisions cited by the learned counsel for the appellant, the culled out position set at rest in the matter stands that the appearance of the defendant in the miscellaneous proceeding in the suit does not exempt the service of summon in the suit. If the summon in the suit is not served, the suit cannot be decreed ex parte. Also that the party's knowledge of the institution of the suit is not sufficient so long as he is not effectively served with summon and although he might have the knowledge about the suit, yet he is within his right to expect an affective service of summons on him calling upon him to appear in court and unless such service is made, he may avoid. Over and above, it has been pointed but that the court should always keep in mind that its always ideal in the interest of justice to see that the matter is decided on contest. 10. Now reverting to the fact of the case in hand, even assuming for the sake of argument that the defendant-appellant was not served the notice in the suit although he was served notice in the interim application and participated therein ordinarily said knowledge of the appellant about running of the suit ought not to have been enough to say that the suit has been rightly decided ex parte in his absence. But, here is a case, where the appellant has not only entered appearance in the interim application by filing vakalatnama but also has entered appearance in the suit by indicating its number specifically. In this case when an ad interim order had been passed, as provided under the provision of order 39, rule 3 of the Code, the copy of the plaint and documents relied upon have also been served on him and that compliance has to be presumed in the absence of any allegation of non-compliance with the prayer for its vacation being made by the appellant-defendant. So, the defendant-appellant had not only the full knowledge about the suit, but also was well aware of the facts on which the suit is founded with the documents relied upon as also the cause of action for filing the same. The matter has not just halted there. But after disposal of the interim application, the defendant-appellant has gone on filing successive petitions for grant of time to file written statement without complaining even about non supply of the copy of the plaint or on any other score and those have been allowed on two occasions and thereafter rejected in view of the provisions of law contained under order 8, rule 1 of the Code. In such state of affair, the appellant thus now cannot fall back upon the plea that he was not served with the notice in the suit. When there is no bar in the law for a defendant to appear in the suit suo motu and to resist the same, the said defendant once having entered appearance suo motu in a suit, cannot have any more the grievance about non-service of summon in the suit which then carries absolutely no significance. But in that event, if any adverse order has been passed behind his back prior to said appearance which ought to have been passed upon hearing him, he has a right to object to the same on the ground of non-service of summon. But present case is not falling in that category. Besides the same, from the discussion as made above, it can be well said that the defendant-appellant had approached the court with dirty hands. For the aforesaid, the submission of the learned counsel for the appellant on this score does not stand for consideration. The substantial question as framed in the facts and circumstances as discussed above does not come to the aid of the appellant and thus receives its answer accordingly. 11. Now coming to the challenge made on merit, as it appears that the lower appellate court dealt it, in para 3 and 4 of its judgment in addressing the contentions raised before it. 11. Now coming to the challenge made on merit, as it appears that the lower appellate court dealt it, in para 3 and 4 of its judgment in addressing the contentions raised before it. The courts below have found that the suit land had been settled in favour of the plaintiff-respondent in a Waste Land Lease Case and the discrepancy with regard to the father's name has also been held to be of no such significance of having an adverse impact on the plaintiff's case. The courts below have also found from the evidence both oral and documentary that it is the defendant-appellant who was forcibly trying to interfere with the peaceful possession of the plaintiff-respondent in respect of the suit land and for the same, initiation of the encroachment case bearing No. 27 of 2005 has been duly considered. This Court also thus finds no such justifiable reason to differ with the same when no such material surfaces to hold that the findings of the courts below are perverse so as to call for interference. For the aforesaid discussion and reason, the appeal stands dismissed and in the facts and circumstances without cost.