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2018 DIGILAW 229 (GAU)

Salil Debnath v. Assam Sri. Guru Singh Sabha

2018-02-06

A.K.GOSWAMI

body2018
JUDGMENT : A.K. Goswami, J. Heard Mr. A.K. Gupta, learned counsel for the petitioner. Also heard Mr. D.P. Sahu, learned counsel for the respondent. 2. The defendant filed a suit against the petitioner in the court of the learned Munsiff No. 1, Tinsukia on 1.7.2014 for ejectment of the petitioner from the suit premises, for recovery of rent, compensation, etc. and the suit was registered as Title Suit No. 52/2014. 3. By an order passed on 16.8.2014, the plaintiff was directed to take steps through regular service as well as through SMS service if phone number of the defendant was available. 4. Order dated 11.9.2014 goes to show that the learned trial court opined that summons were duly served as the same was served on the brother of the defendant on 5.9.2014. The said order also refers to a postal receipt dated 20.8.2014 indicating that the plaintiff had also taken steps by registered post. 5. By the said order, next date was fixed on 20.9.2014. As the defendant did not appear on 20.9.2014, suit was directed to be proceeded ex parte against him and 1.11.2014 was fixed for evidence of plaintiff. 6. On 1.12.2014, the defendant filed a petition under Order 9, Rule 7 CPC stating that on 20.11.2014, when the attorney of the defendant, who had been depositing the rent on behalf of the defendant regularly, came to the court to get the challan passed, came to learn that a suit was filed against the defendant and that the suit was directed to be proceeded ex parte. It is stated in the said petition that the brother of the defendant, namely, Malin Deb is not on talking terms with the defendant and that he always acted adversely to the interest of the defendant. It is further stated that the defendant, for the last 10 months, was residing at Mongra, District - Kohima in the State of Nagaland. It is also stated that though there was a direction to send the summons through SMS, the same was not sent to the defendant and summons were also not received through registered post with A/D. 7. An objection was filed to said petition wherein, amongst others, it is stated that summons sent through registered post with A/D had returned back un-served with the postal remark "refused". However, there is no denial of the statement that summons were not sent through SMS. 8. An objection was filed to said petition wherein, amongst others, it is stated that summons sent through registered post with A/D had returned back un-served with the postal remark "refused". However, there is no denial of the statement that summons were not sent through SMS. 8. By the order dated 20.2.2016, the learned trial court held that as the summons from the court was not received by a competent person, summons from court was not duly served upon the defendant. However, the learned trial court held that the registered post with A/D was returned un-served with report "refused" on 09.07.2014. Therefore, it can be presumed that summons was duly served. 9. It is to be noted when summons was accepted on 11.09.2014, learned trial court had not referred to the refusal of the registered post on 09.07.2014, but had accepted that court process was duly served. It is also noticed that the learned trial court had rejected the contention of the petitioner that summons had not been sent through SMS by holding that the petitioner had failed to prove that the plaintiff knew the phone number of the defendant. The aforesaid finding is perverse because on the body of the plaint itself the plaintiff had indicated the mobile number of the defendant. Fact remains that the plaintiff had not taken requisite steps for sending of summons through SMS, as directed, although the mobile phone number of the defendant was known to the plaintiff. 10. That apart, the petitioner had taken the plea that at the relevant point of time he was in Mongra, Nagaland and in the circumstances, when two modes of service were not effected upon the defendant, it will not be prudent to act upon refusal of the registered post, more so, when the brother of the petitioner, who resides opposite to the house of the petitioner, is stated to be having inimical interest. 11. When the application under Order 9, Rule 7 CPC was filed without any undue delay, it will be just and proper to vacate the ex-parte order dated 13.6.2017 and allow the defendant to file his written statement. 12. In view of the above discussions, the revision petition is allowed. The impugned orders are set aside and quashed. The defendant is allowed to file his written statement within a period of one month from today. 12. In view of the above discussions, the revision petition is allowed. The impugned orders are set aside and quashed. The defendant is allowed to file his written statement within a period of one month from today. The plaintiff will be entitled to file further evidence of all his witnesses in the event of filing of written statement by the defendant/petitioner. 13. Revision petition is allowed and disposed of.