Judgment:
P.K. Tripathy, J.
1. Ex-parte decree of eviction passed on 1.11.1993 in O.S.No. 633 of 1992 having been refused to be set aside by the Civil Judge (Jr. Division), Balasore and the Ad hoc Addl. District Judge (Fast Track Court), Balasore as per the impugned orders respectively passed on 26.4.2000 in Misc. Case No. 105 of 1995 and 10.12.2002 in Misc. Appeal No. 11/12 of 2001/2000, the same are under challenge in this revision at the instance of the defendant/petitioner. Plaintiff is the opposite party.
2. Fact, which is not in dispute, is that summons for settlement of issues was issued against the petitioner in both the ways, i.e., by regular process as well as by registered post as per the address given in the cause title. The process issued through Court was returned with the report of the process server that petitioner refused to receive the notice. The postal acknowledgment due was not however received back even after expiry of the period of one month. Therefore, the trial Court held the service of summons to be sufficient and set the defendant ex parte for his non-appearance and thereafter concluded the ex parte hearing and passed the impugned ex parte decree on 11.11.1993. Opposite party instituted Execution Case No. 6 of 1994 to execute the decree. It is the case of the petitioner that on 13.3.1995 when the process server came to the spot for effecting delivery of possession of the suit property, then only the petitioner could learn about the ex parte decree, got verified the matter and found that notice was not issued to him in his correct address and that, in the suit notice was never served on him either through the process server of the Court or through registered post. Accordingly, he filed application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short 'the Code') to set aside the ex parte decree passed on 1.11.1993. In that context two names of the locality was put forth by both the parties and their respective defence in support and against the prayer under Order 9, Rule 13 of the Code. Those two names are 'Sovarampur' in which address notice was issued and 'Angaragadia' in which address, as claimed by the petitioner, he resides.
3. Opposite party resisted to the application under Order 9, Rule 13 of the Code, inter alia, contending that the suit premises consisting of land and house has been recorded to be in mouza Sovarampur as per the Major Settlement record but the self-same property has been recorded to be in village Angaragadia as per the Current Settlement record. According to the opposite party, that change in the name of the locality, so far as the disputed property is concerned, does not make any difference when notice through the process of the Court was offered to the petitioner but he refused to receive the same. Under such circumstance the opposite party states that a case of non-service of notice being not substantiated, therefore, the petitioner's application under Order 9, Rule 13 of the Code is liable to be rejected.
4. The matter was contested between the parties in which both the parties relied on both oral and documentary evidence. The Public Relation Inspector from Balasore Head Post Office was examined as O.P.W. No. 5 and he stated that Sovarampur and Angaragadia are two different localities. On the other hand, the Record of Rights of the Major Settlement marked Ext. A discloses that the disputed property situates in mouza Sovarampur. As noted by the Courts below, the process server who offered the summons in the suit and the process server who delivered the notice in the Execution Proceeding were examined as O.P.W. Nos. 3 & 4 respectively and their evidence has been found credible. The Courts below concurrently held that there being due service of summons through Court though refused to be received by the petitioner, therefore, the defendant cannot plead ignorance about pendency of the suit or non-service of summons. Both the Courts below also held that when notice was issued in both the ways, service of notice by one of the modes is sufficient and- even if there is no proof of service of notice by post, that does not make any difference and that when the defendant has failed to substantiate the plea raised by him, his application under Order 9, Rule 13 of the Code is bound to fail.
5. Mr. S. P. Mishra, learned counsel for the petitioner strenuously urged that the Court below has taken note of service of notice under Section 106 of the Transfer of Property Act (in short, 'T.P. Act') as one of the grounds regarding knowledge of the defendant about the suit. In that context, relying on the ratio in the case of Bishnu Charan Malla v. Sankarsan Mohapatra alias Behera and Ors., 2003 (i) OLR 61, he argued that knowledge about institution of a suit is not sufficient for the defendant to appear and contest the suit unless a summons in the suit is effectively served and therefore service of notice under Section 106 of the T.P. Act is of no consequence to grant any disadvantage to the petitioner or to extend a disfavour to him on that ground. If the orders of the Courts below would have been dominated by such a finding or influenced by such a fact of notice of the suit through the notice under Section 106 of the T. P. Act for rejection of the application under Order 9, Rule 13 of the Code, then this Court would have entertained the aforesaid argument of the petitioner in view of the ratio in the cited case. On a reference to the impugned order, this Court finds that while making statement of fact involved in the suit it has been noted by the Courts below relating to service of notice under Section 106 of the T. P. Act prior to institution of the suit. In other words, the Courts below have not considered service of notice under Section 106 of the T. P. Act to be sufficient notice relating to institution of the suit and as a consequence not to consider the application under Order 9, Rule 13 of the Code. That being not the basis of rejection of the application under Order 9, Rule 13 of the Code, therefore, the above criticism to the impugned order is found to be without merit.
6. Mr. S. P. Mishra further argued that when the postal AD was not received back, the trial Court should have awaited for the same and in the alternative should have issued fresh notice. He argued that in any event when the service of notice, be it through the process server or through post, has not been proved to be effectively served, therefore, the Courts below should have considered that with a liberal attitude for subscribing to the cause of substantial justice. Referring to the case of Gopal Krushna Mohapatra v. Canara Bank, 93 (2002) CLT 33, he argued that the ratio propounded by this Court be preferred that 'where substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred...'. In that context Mr. S. Misra-2 re-stating the fact situation involved in the case and the settled principle of law that the factual finding recorded by the Courts below are not open to be reversed by the revisional Court in the absence of illegality or perversity argued that justice is dearer to both the parties. He further argued that opposite party having taken all the requisite steps about a decade's back for eviction of the petitioner from the suit premises and obtaining a decree in that respect after due offering of notice, cannot be subjected to harassment only for the pleasure of the defendant that he wants to contest the suit because he chooses to do so now and not at the initial stage when summons was offered to him. He argued that such fact scenario if would be properly visualised and considered, then in the absence of any illegality in the ex parte decree the case of substantial justice is in favour of opposite party and not in favour of the petitioner. Relating to sufficiency of service of summons he relied on the case of Basant Singh and Anr. v. Roman Catholic Mission, 95 (2003) CLT 324 (SC). In that citation the Apex Court has held that if there is proof of valid service of summons and notwithstanding that non-participation of the defendant, that leads to a circumstance of non-proving of the ground as provided in Order 9, Rule 13 of the Code and therefore in such a case the ex-parte decree is not to be disturbed.
7. So far as the dispute relating to name of the locality (Sovarampur and Angaragadia) is concerned, this Court finds no illegality in the approach and adjudication made by the Courts below inasmuch as the disputed property has been recorded to be situated in the said Mouzas respectively as per the Major Settlement and Current Settlement Records of Rights. The location of the land and the house where the petitioner resides has not changed but the name of that locality was changed. Neither party has adduced evidence when such change occurred, but it goes without saying that such a change occurred in the intervening period after preparation of Major Settlement R.O.R. and before preparation of current Settlement R.O.R. That aspect is however academic inasmuch as the Courts below have found the evidence of O.P.Ws. 3 and 4 as sufficient to indicate that summons was offered but refused to be accepted by the petitioner. Petitioner has not been able to discredit the evidence of the process server. Thus, this Court finds that by the date of ex parte decree a summons offered but refused to be accepted by the petitioner was the existing fact situation.
8. As provided in Order 9, Rule 13, of the Code a defendant can apply for setting aside the ex parte decree on two grounds, viz., (i) summons was not duly served, or (ii) he was prevented by any sufficient cause from appearing when the suit was called on for hearing.
9. In this case petitioner has not advanced a case of non-appearance in the Court having been prevented by any sufficient cause. He has only advanced the grounds of non-service of summons because of wrong address. In that respect the Courts below have already recorded the finding that notice issued through the Court notwithstanding discrepancy in the names of the locality, was offered but refused by the petitioner. Proof of that circumstance proves valid service of notice and under such circumstance the sole ground emphasised by the petitioner has not been proved. Under such circumstance the petitioner is not entitled to any relief on the ground of non-service of summons.
10. So far as the principle of substantial justice is concerned, this Court finds the claim of the opposite party in that respect and the ground assigned thereof is more akin to the cause of substantial justice than that of the defendant/petitioner. When the Courts are overburden with huge number of cases and that to year-old cases, when the defendant, as proved on record, refused to receive the summons and therefore suffered an ex parte decree and when there is no reasonable excuse established by the petitioner for seeking the relief under Order 9, Rule 13, of the Code, therefore, under the given facts and circumstance the case of substantial justice is not available in his favour.
11. For the reasons indicated above, while not interfering with the orders of the Courts below, the Civil Revision stands dismissed.