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2017 DIGILAW 74 (GAU)

J. K. Mech v. Chitralekha Mech

2017-01-17

SONGKHUPCHUNG SERTO

body2017
JUDGMENT AND ORDER S. Serto, J. (CAV) This is a civil revision petition under Article 227 of the constitution of India read with Section- 151 of Code of Civil Procedure 1908 praying for setting aside the judgment and order dated 22/09/2015 of the Political Assistant to the Deputy Commissioner, Dimapur, passed in monetary dispute, MISC/POL- Case No. 07/2015, wherein the petitioner was directed to pay a sum of Rs. 9,00,000/- (Rupees Nine lakhs) to (the respondent (petitioner in that case) and a fine of Rs. 50,000/- (Rupees Fifty Thousand) for his non appearance in the case, and also praying for setting aside the order dated 11/12/2015, DC/MS/GEN-15 of the same authority wherein the General Manager, BSNL, Dimapur was directed to deduct a sum of Rs. 8,000/- (Rupees Eight thousand) from the monthly pension of the petitioner till the above stated amount is realized or recovered. 2. The facts and circumstances leading to the institution of this civil revision petition are as follows:- The respondent filed a petition before the Deputy Commissioner, Dimapur stating that her elder sister Late Protima Saikia along with the petitioner had jointly taken a loan of Rs. 10,00,000/- (Rupees Ten lakhs) from a society namely Azalimi Society Ltd. of Naharbari Village in Dimapur on 16th December, 2009 by mortgaging a plot of land with the building standing therein which belongs to her elder brother, and the loan amount which had accumulated to Rs. 18,00,000/- (Rupees Eighteen lakhs) with interest accrued there to has been paid by her sister Late Protima Saikia with the assurance of the petitioner and his wife that they will share the liabilities. But since they have not done as promised, she has approached the Deputy Commissioner to take necessary action for recovery of the amount from the petitioner(respondent in that petition) to the extent of his liability in that loan. After the application was submitted, it was endorsed to the Political Assistant, who then took up the matter by registering the same as MISC/POL Case No. 7/2015. Thereafter, the Political Assistant issued summon to the petitioner three times. When the petitioner/respondent did not appear the Political Assistant passed the impugned judgment and order dated 22/09/2015 wherein, as stated above the petitioner in this revision petition was directed to pay the sum of Rs. 9,00,000/- (Rupees Nine lakhs) to the respondent (petitioner in that case) and also to deposit a sum of Rs. When the petitioner/respondent did not appear the Political Assistant passed the impugned judgment and order dated 22/09/2015 wherein, as stated above the petitioner in this revision petition was directed to pay the sum of Rs. 9,00,000/- (Rupees Nine lakhs) to the respondent (petitioner in that case) and also to deposit a sum of Rs. 50,000/- (Rupees Fifty thousand) as fine for his non appearance before the Political Assistant in defiance of the summon issued to him. When the said amounts were not deposited by the petitioner(respondent in that case), the Political Assistant passed another order on 11-12-2015 wherein the DGM BSNL, Dimapur was directed to deduct a sum of Rs. 8,000/- (Rupees Eight thousand) every month from the pension of the petitioner and submit the same in the Court of Political Assistant for further depositing of the same in the bank account of the respondent. The petitioner having been aggrieved has filed this revision petition on the ground, mainly, that he did not receive copies of the summons issued to him, as such, the said judgment and order were passed without giving him the opportunity of being heard. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondent. It is submitted both in the petition of the petitioner and in the oral submission of his learned counsel that the petitioner never receive the summons issued to him and, in fact, he came to know of the case only on 25/07/2016 when the office of the BSNL informed him regarding the order dated 11/12/2015 of the Political Assistant to the Deputy Commissioner, Dimapur wherein the DGM BSNL, Dimapur was directed to deduct a sum of Rs. 8,000/- (Rupees Eight thousand) every month from his pension. It is also submitted that the loan was taken by the sister of the respondent (petitioner in that case) and the petitioner only stood as her guarantor, and since the loan has been settled/liquidated he has been relieved of any liability. On the other hand, the learned counsel for the respondent submitted that the petitioner did receive copies of the summons and, in fact, the last summon was delivered by the officer of the court to his wife, therefore, there is no question of the impugned judgment and order having been passed without giving the opportunity of being heard to him. On the other hand, the learned counsel for the respondent submitted that the petitioner did receive copies of the summons and, in fact, the last summon was delivered by the officer of the court to his wife, therefore, there is no question of the impugned judgment and order having been passed without giving the opportunity of being heard to him. The learned counsel also submitted that the petition is barred by limitation as the same was filed only after about a year from the date the impugned judgment and order were passed, therefore, it deserves to be dismissed. 4. Before the impugned judgment and order dated 22/09/2015 was passed, as per the record, the following daily orders were passed by the Political Assistant to the Deputy Commissioner, Dimapur in MIS/POL-CASE No. 7/2015:- On 06/06/2015 Received endorsement with Complaint Summon issued to both parties. On 14/06/2015 Summon returned. On 17/06/2015 Re-issue summon to Shri J.K. Mech fixed on 25/06/2015. On 25/06/2015 Smt. Chitralekha complainant present J.K. Mech absent Summon re-issue. Shri Dipul Dijora (D.B.) is detail to serve the summon in person to Shri J.K. Mech and to give reportfixed on 19/07/2015. On 28/06/2015 Mr. Dipul Dijora (D.B.) report the summon taken to the residence Khatkathi and served the wife of Shri J.K. Mech. Final Summon to J.K. Mechh fixing 20/07/2015. On 20/07/2015 Complainant present J.K. Mech absent. Ex party proceed against J.K. Mech. On 22/09/2015 Judgment and order passed. 5. In the record of MIS/POL-CASE No. 7/2015 there are three copies of summons issued to the petitioner/respondent in that case:- 1. The first one signed on 9th June, 2015 for appearance on 16th June, 2015. 2. The second one signed on 17th June, 2015 for appearance on 25th June, 2015 and 3. The third one signed on 20th July, 2015 for appearance on the same day. None of the summons contains report of the process server and bears signature of the person to whom the same was purportedly delivered which would indicate that a copy of the same has been served to the petitioner/respondent in that case. Therefore, this Court wonders as to how the Political Assistant came to the conclusion that the petitioner had been served with a copy of the summons issued on the dates given above. Therefore, this Court wonders as to how the Political Assistant came to the conclusion that the petitioner had been served with a copy of the summons issued on the dates given above. Besides, even if he were to assume that the petitioner had been served with a copy of the last summons issued on 20th July, 2015, it would not have been reasonable to expect the petitioner(respondent in that case) to appear on the same day before the court. Reasonable time is required to be given to anybody to whom summon is issued. Though Rule 15 of order 5 of CPC allows serving of summon to any adult member of the family of the person to whom the same is intended to be served, Rule 16 of the same order provides that the serving officer should obtain signature of the person to whom the copy of the summon is so delivered or tendered on the original of the same. This is to ensure that the summon so issued is delivered and is received by the person to whom the same is intended to be served, and, so that, the Court will be in a position to know whether or not the same has been delivered to the person whose presence in the Court has been required. But in this case, as stated above, none of the summons issued by the Political Assistant bears signature of anybody which would indicate that the copies of the summons have been served to the petitioner(respondent in that case) or to any of the adult members of his family. Besides, there is nothing in the record of the case that would indicate or show that the process server of the Political Assistant had reported to the later that a copy of the summon had been delivered to the wife of the petitioner(Respondent in that case). In view of the facts and circumstances and the provisions of law stated above, it is clear that the Political Assistant to the Deputy Commissioner, Dimapur had erred both in facts and in law in assuming that the petitioner(respondent in that case) had received a copy or copies of the summons issued to him, and, in having passed the impugned judgment and order ex-parte. Therefore, to allow such judgment and order (the impugned Judgment and order) to stand or to remain in operation would amount to upholding the denial of a chance of being heard to the petitioner(respondent in that case). 6. Coming to the objection raised by the respondent on the ground of delay, it is submitted by the petitioner's learned counsel that he came to know the existence of the impugned judgment and order only on 25th July, 2016 when authorities of BSNL, Dimapur informed him regarding the letter issued by the Political Assistant to the Deputy Commissioner, Dimapur directing the A.G.M. (Admin), GMTD BSNL, Dimapur to furnish the updated report on the necessary steps taken in pursuance of the order dated 11/12/2015 of the Political Assistant which is one of the impugned orders in this case. In support of his submission the petitioner filed a copy of the said letter No. DV/MS/Gen-16, dated 25th July, 2016 (at Annexture-G) issued by the Political Assistant to Deputy Commissioner, Dimapur. In the absence of any evidence to show that the petitioner was in received of the summons issued by the Political Assistant and was aware of the existence of the impugned judgment and order it has to be accepted that he (the petitioner) came to know of the institution of such case and existence of such judgment and order only when the authorities of BSNL informed him regarding the same after the issuance of the letter mentioned above by the Political Assistant as claimed by him. Counting the number of days from 25th July, 2016 till 23rd August, 2016 i.e. the day this revision petition was filed there is no delay in the filing of the same. 7. In view of what has been stated above the revision petition is allowed and the impugned judgment dated 25/07/2016 of the Political Assistant to Deputy Commissioner, Dimapur passed in monetary dispute, MISC/POL- Case No. 07/2015 and his order dated 11/12/2015, DC/MS/GEN-15 are set aside. Let the case record of MISC/POL- Case No. 07/2015 be send back. The parties shall appear before the lower court on 31-1-2017.Needless to say, but, to make it more clear, the Court below shall allow the petitioner(respondent in that case) to raise all the points of objection he may like to raise, to the extent it is permissible under law. Petition allowed.