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2020 DIGILAW 389 (MP)

Saroj Dubey v. Janardan Prasad

2020-03-06

NANDITA DUBEY

body2020
ORDER : Present appeal by the defendants is filed against the order dated 06.05.2014, passed by Second Additional District Judge, Rewa in MJC No.96/2011, whereby their application under Order 9 Rule 13 of the C.P.C. has been rejected. 2. Original plaintiff Guruprasad filed a suit for declaration and permanent injunction against defendants No.2 and 3. Defendants filed their written statement refuting the allegations in the plaint. In addition, counter claim was also filed, inter alia contending that defendants No.2 and 3 are the owner of house No.41/21, and plaintiff was a tenant in the suit house. It was further alleged that Satyanarayan, father of defendants No.2 and 3 and plaintiff were real brothers. Satyanarayan died in the year 1988. As defendant No.2 was working in the PWD department at Shahdol, he gave one portion of the suit house on rent at the rate of Rs.75/-per month to his uncle Guruprasad. However, Guruprasad stopped paying rent from 04.07.2000. A registered notice, terminating the tenancy and vacating the house premises was, therefore, sent to the plaintiff. The plaintiff, however, instead of vacating the premises, denied the title of defendant No.2. On enquiry, defendants No.2 and 3 came to know that plaintiff fraudulently got his name mutated in the house, showing Satyanarayan having died, issue less. 3. Plaintiff Guruprasad died during the pendency of the suit. His legal representatives did not pursue the suit, hence the same dismissed. The counter claim filed by defendants No.2 and 3 was partly allowed by the judgment and decree dated 02.12.2016. It was directed that legal representatives of plaintiff and defendant No.1 will deliver the peaceful possession of suit house to defendants No.2 and 3, within a period of two months. It was further directed that the legal representatives of plaintiff and defendant No.1 will also pay compensation at the rate of Rs.75/-per month from the date of filing of suit till the possession is delivered. 4. The appellants filed an application under Order 9 Rule 13 of the C.P.C. for setting aside the ex-parte decree, contending inter-alia that they had no knowledge about the suit filed by Guruprasad or about the counsel engaged by him. Guruprasad died in September, 2004, and after his death, his widow, appellant No.1, started living with her son in Satna. 4. The appellants filed an application under Order 9 Rule 13 of the C.P.C. for setting aside the ex-parte decree, contending inter-alia that they had no knowledge about the suit filed by Guruprasad or about the counsel engaged by him. Guruprasad died in September, 2004, and after his death, his widow, appellant No.1, started living with her son in Satna. Nephew of appellant No.1, practicing at Rewa Court heard about the mutation of late Guruprasad's land in favour of Pratap Narayan and informed her aunt, who applied for certified copy of the khasra on 14.07.2011, which was received on 04.11.2011. After receiving the certified copy of khasra on 04.11.2011, they came to know that mutation was done on the basis of ex-parte judgment and decree dated 02.12.2006, passed in C.S. No.49-A/2003. Hence, the application to obtain the certified copy of judgment in C.S. No.49-A2003, was made on 10.11.2011 and the certified copy was received on 21.11.2011. It was further stated that appellants never received the summons and even the paper publication was made in a newspaper, which was not in wide circulation in Rewa district. 5. The learned trial Judge, after considering the pleadings and the evidence on record, rejected the application, as barred by time. 6. It is contended by Ms. Sudipta Choubey, learned counsel appearing for the appellant that the learned Judge has taken a hyper-technical view in dismissing the application. It is argued that the Court has not considered that the appellants acquired the knowledge about the judgment and decree dated 02.12.2006, on 21.11.2011, when they received the certified copy and the application was filed within 30 days of the knowledge of decree, was within time, hence there was no necessity to file an application for condonation of delay. 7. Learned counsel has placed reliance on the case of Bhagmal and others Vs. Kunwarlal and others (2010) 12 SCC 159 and Commissioner, Religious and Charitable Endowments, Bangalore Vs. Kasliyappa Gurujkula Shri Vidya Shala (1995) 6 SCC 481 , wherein the Supreme Court has condemned the hyper-technical approach adopted by the High Court and observed that the question of delay is inter-linked with the merits of the matter. The application under Order 9 Rule 13 of the C.P.C. itself has all the ingredients of the application for condonation of delay. The application under Order 9 Rule 13 of the C.P.C. itself has all the ingredients of the application for condonation of delay. The appellants/defendants when ultimately came to know about the decree had moved the application within 30 days of knowledge and allowed their appeal. 8. Per contra, Shri Bhupendra Mishra, learned counsel appearing for the respondents has supported the impugned judgment. 9. Order 9 Rule 13 of the C.P.C. reads as under :- “13. Setting aside decree ex parte against defendants : In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. Explanation :-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.” 10. A perusal of aforestated provision clarifies that an ex-parte decree against the defendants has to be set aside if the party satisfies the Court that summons has not been duly served or he was prevented by sufficient cause from appearing when the suit was called for hearing. However, the Court shall not set aside the said decree on mere irregularity in the service of summons. 11. However, the Court shall not set aside the said decree on mere irregularity in the service of summons. 11. The language of second proviso to Order 9 Rule 13 of C.P.C. makes it obligatory on the appellate Court not to interference with an exparte decree unless it meets the statutory requirement. 12. The Supreme Court in (2011) 3 SCC 545 Parimal Vs. Veena has observed :- “16. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application.” 13. The Supreme Court has further considered large number of its earlier judgments in Greater Mohali Area Development Authority Vs. Manju Jain (2010) 9 SCC 157 and Gujrat Electricity Board Vs. Atmaram Sungomal Poshani (1989) 2 SCC 602 , wherein it was held :- "There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service." (Emphasis added)” 14. The burden to rebut the presumption lies on the party, challenging the factum of service." (Emphasis added)” 14. The application under Order 9 Rule 13 of the C.P.C. mentions that nephew of appellant No.1 when came to know about the mutation of suit property in respondent’s name, informed the appellant No.1, pursuant to which the counsel was asked to apply for certified copy of the said khasra and after receiving copy of khasra on 04.11.2011, further application for certified copy of exparte judgment and decree dated 02.12.2006 was filed, which was received by the appellants on 21.11.2011. The application, however, does not mention as to who was the nephew and when did he receive the knowledge about the said mutation, nor is there any details as to when appellant No.1 left to live with her son in Satna. 15. The evidence was led before the trial Court in support of application under Order 9 Rule 13 of the C.P.C. Sunil Kumar Dubey (P.W.-1) in para 22 of his deposition has admitted that he was aware that he and his sister were substituted as plaintiff in the suit as per the order of the trial Court. P.W.-3 Poonam Mishra, in her deposition has admitted that she had lived in the suit property till 2006. 16. Undisputedly, the suit for declaration and permanent injunction was filed by Guruprasad, who also filed reply to the counter claim filed by the respondents herein and prayed for dismissal of the counter claim. On perusal of record, it is evident that the information regarding death of plaintiff on 25.12.2004 was brought to the notice of the Court by his counsel on 11.07.2005. Thereafter, application to implead the legal representatives of Guruprasad in the counter claim was filed by the respondents. On this application, notices were issued to the present appellants on the same address as was mentioned in the plaint filed by Guruprasad, however, none appeared on behalf of the legal representatives. Thereafter, pursuant to the direction dated 01.07.2006 for service on the legal representatives of late Guruprasad, publication in Hindi Newspaper Nav Bharat, widely circulated in Rewa, Satna was made on 13.07.2006. Despite that none has appeared on behalf of legal representatives of late Guruprasad, hence the exparte decree was passed on 02.12.2006. 17. Thereafter, pursuant to the direction dated 01.07.2006 for service on the legal representatives of late Guruprasad, publication in Hindi Newspaper Nav Bharat, widely circulated in Rewa, Satna was made on 13.07.2006. Despite that none has appeared on behalf of legal representatives of late Guruprasad, hence the exparte decree was passed on 02.12.2006. 17. In view of the aforestated, the contention of the appellants, that they were not aware of the suit filed by late Guruprasad or about the exparte decree, especially when they were living in one portion of the suit property, is hard to believe. There is presumption of service of a notice sent by registered post. This presumption is rebuttable by showing that the address mentioned on the cover was incorrect. In the present case, the registered notice was sent on the same address as mentioned in the plaint. There is nothing on record to show that the said address was incorrect. Further, the service by publication in a widely circulated Hindi News Paper would deemed to be an effective service. 18. In view of the above, the appeal fails and is dismissed.