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2019 DIGILAW 1084 (GAU)

Purnananda Press v. Chorus Machineries

2019-09-20

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. SR Gogoi, learned counsel for the appellant and Mr. R. Dey, learned counsel appearing for the respondent. 2. Money Suit No.357/2011 was instituted in the Court of the learned Civil Judge No.1, Kamrup (M) by the respondent plaintiff herein for a decree of an amount of Rs. 6,03,352/-. The appellant defendant is a press namely M/s Purnananda Press and in the array of parties, they were shown to be represented by its proprietor Pradip Koch. The very array of the parties that the appellant defendant is a press and is represented by its proprietor Pradip Koch by itself an indication that appropriate notice would have to be served on Pradip Koch, unless some other material is brought on record that notice can also be served on some other person. 3. The learned Civil Judge by its order dated 12.03.2013 arrived at its satisfaction that the postal receipt along with the acknowledgement card regarding service of summons on the defendant had been received and that the defendant is absent without steps. The learned Court understood from the acknowledgement card that the summons had been duly served upon the defendant. As the money suit was decreed ex-parte, an application under Order-IX Rule-13 of CPC was preferred by the appellant defendant by taking the plea that appropriate notices were not served on them. The said application stood rejected by the order dated 23.06.2015. 4. In the order dated 23.06.2015, the learned Civil Judge went into many other aspect as to how the appellant defendant came to know about the proceedings as well as under what circumstance the Court under Order-IX Rule-13 can set aside a decree passed ex-parte. In our view, none of such discussions are of relevance and the only relevant aspect would be to arrive at a conclusion as to whether the summons had been duly served on the defendant or not. 5. In our view, none of such discussions are of relevance and the only relevant aspect would be to arrive at a conclusion as to whether the summons had been duly served on the defendant or not. 5. Although an objection was raised as regarding some delay in preferring the application for setting aside the ex-parte order and the learned Court also formed a tentative view that the petition was barred by law as it was not accompanied with any petition for condoning the delay, but at the same time as the Court had gone into the merits of the petition for setting aside the ex-parte decree, we are not inclined to go into the question of delay at this stage. Ultimately, the learned Civil Judge arrives at a conclusion that from the case records, it appeared that the defendant had received the acknowledgement card on 16.12.2012 and therefore, the suit was directed to be proceeded ex-parte against him on 12.03.2013. 6. We are constrained to observe that the learned Civil Judge even did not bother to go into the contents of the acknowledgement card and arrive at its satisfaction as to whether the notice was duly served on the defendant or it was served on some other person or it was not served at all. As already noted from the acknowledgement card, it can be inferred that the notice was received by one Ashwini Das whereas the defendant was Purnananda Press represented by Pradip Koch. No material had been produced that Ashwini Das is intricately connected with Pradip Koch, the proprietor of the defendant press, so as to draw an inference that any service made on Ashwini Das can also be construed to be due service on the Purnananda Press. 7. In view of the aforesaid factual situation, we are inclined to interfere with the order dated 23.06.2015 of the learned Civil Judge No.1, Kamrup (M) rejecting the petition for setting aside the ex-parte decree dated 05.08.2013. As the learned Civil Judge had gone into the factual matrix of the aspects as regards the service of summons, we are also required to answer the same as per the materials available on record. 8. In such view of the matter, we remand the matter back to the learned Civil Judge No.1, Kamrup(M) for an appropriate adjudication. As the learned Civil Judge had gone into the factual matrix of the aspects as regards the service of summons, we are also required to answer the same as per the materials available on record. 8. In such view of the matter, we remand the matter back to the learned Civil Judge No.1, Kamrup(M) for an appropriate adjudication. In the adjudication to be made, the parties may object to any delay being there as regards the filing of the petition and the other party shall also be at liberty to make their appropriate application explaining such delay if it exists. 9. The revision petition stands allowed as indicated above. 10. The order dated 23.06.2015 in Misc.(J) Case No.850/2013 stands set aside and upon the matter being taken up on remand, it be proceeded as per law as indicated above. Send back the LCR, if any.