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2017 DIGILAW 970 (GAU)

SURENDRA NATH KALITA v. BIPUL DAS

2017-07-24

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. P.P. Das, learned counsel for the petitioner. None appears on call for the respondent No. 1 on whom the notice had duly served. None appears for the respondent No. 2 although his name is reflected in the cause-list. 2. By filing this application under Article 226 of the Constitution of India, the petitioner has challenged the action of the learned M.A.C.T., Nalbari by which the said learned Tribunal had refused to accept a petition under Order IX Rule 13 CPC for setting aside the ex-parte judgment and award passed by the said learned Tribunal in MAC Case No. 243/2015. 3. The learned counsel for the petitioner submits that the order to proceed ex-parte against the petitioner was passed on 11.12.2015 without recording the satisfaction of the said learned court as regards due service of summons. It is further submitted that when the petitioner came to know about ex-parte judgment passed against him, he filed an application under Order IX Rule 13 read with Section 151 CPC for recalling or setting aside the ex-parte judgment and award. 4. The record of the learned MACT, Nalbari have been called. From the record it appears that the claim petition was registered on 21.09.2015 and next date of the case was fixed on 19.10.2015 for service report. Record reveals that steps for service of summons was posted by registered post under postal receipt No. AR5474230381IN dated 14.10.2015. On 19.10.2015, the learned Tribunal recorded that the service report on opposite parties have not yet been returned, fixing on 11.12.2015 for service report and for written statement. It appears that the learned Tribunal did not take note of the fact that when the summons/notice was posted on 14.10.2015, service could not have been returned by 19.10.2015. Therefore, when date for service report was extended to 11.12.2015, it was incumbent on part of the learned Tribunal to issue fresh summons as the date for appearance on 19.10.2015 had already lapsed and therefore, all the practical purposes when the order to proceed ex-parte was passed on 11.12.2015, the petitioner did not have any notice of appearance. 5. It is further surprising to note that without recording satisfaction as to the due service of summons on the petitioner, the learned Tribunal mechanically passed the order to proceed ex-parte against the petitioner herein. 5. It is further surprising to note that without recording satisfaction as to the due service of summons on the petitioner, the learned Tribunal mechanically passed the order to proceed ex-parte against the petitioner herein. The same is not found to be inconsonance with the provisions of Order V Rule 9-A CPC. It is further observed that the summons was not posted by the MACT, Nalbari but the summons was posted by the claim-petitioner and the postal receipt was submitted along with the memo of appearance dated 19.10.2015. The postal receipt does not indicate if any acknowledgment card was attached to the notice while it posted and therefore, without A/D card having been received, the learned Tribunal ought to have issued fresh summons as indicated above. From the postal receipt, it also appears that the said postage could be tracked in the website of India Post, but the claim-petitioner before the learned Tribunal did not track the status of delivery, therefore, in the absence of the returned acknowledgment card and in the absence of the recording of satisfaction by the learned MACT, Nalbari, that the summons was duly served on the petitioner, the learned Tribunal ought not to have proceeded ex-parte against the petitioner. 6. The other allegations of the petitioner is far more serious as it has been alleged that the learned Tribunal did not even receive the application filed under Order IX Rule 13 CPC for setting aside the ex-parte order. This action is liable to be deprecated. It is the right of the petitioner to file any application before the Tribunal and if the Tribunal is of the view that such an application is not to be entertained it would dismiss the application there and then but merely because the learned Tribunal is of the view that such a petition/application is not maintainable, a M.A.C. Tribunal does not have a right to refuse to accept any application that may be filed. As the M.A.C. Tribunal is performing a statutory function, it has a duty to register and number all petitions that may be filed before it and if it deems appropriate, it may reject and/or return the same outright without issuing any notice to the other side. 7. As the M.A.C. Tribunal is performing a statutory function, it has a duty to register and number all petitions that may be filed before it and if it deems appropriate, it may reject and/or return the same outright without issuing any notice to the other side. 7. In that view of the matter, this Court is of the view that there is nothing on record of MAC Case No. 243/2015, whereby the learned Tribunal could have proceeded ex-parte against the petitioner as there is no record of satisfaction that the summons was duly served. Therefore, this revision stands allowed and the ex-parte judgment and award dated 21.06.2016 passed by the learned M.A.C.T., Nalbari in MAC Case No. 243/2015 is hereby set aside. 8. The learned M.A.C. Tribunal, Nalbari shall now proceed with the claim application i.e. M.A.C. Case No. 243/2015 afresh by issuing a fresh summons to the other opposite parties and to the claimant. 9. The petitioner shall appear before the said learned Tribunal on 19.08.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned Tribunal. 10. As a note of caution, the learned M.A.C.T., Nalbari shall now take care that without recording of satisfaction as to the due service of summons on the other side, it shall not casually and in the cavalier manner accept service of summons and it is also directed not to refuse to accept any application which may be filed by any party, further providing that if the application is not found sustainable, it may proceed to dispose of the matter, but not at the cost of refusing to accept filing of such applications. 11. With the aforesaid note, this revision stands allowed. There shall be no order as to cost.