Rajendra Prasad Singh and ors. Vs. Gulam Rasool and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/514845
SubjectCivil
CourtJharkhand High Court
Decided OnJan-27-2003
Case NumberAppeal from Original Order No. 184 of 1996
Judge M.Y. Eqbal, J.
Reported in2003(51)BLJR470; [2003(1)JCR534(Jhr)]
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantRajendra Prasad Singh and ors.
RespondentGulam Rasool and ors.
Appellant Advocate P.K. Prasad, Adv.
Respondent Advocate Shamim Akhtar, Adv.
DispositionAppeal allowed
Cases ReferredSushil Kumar Sabharwal v. Gurpreet Singh and Ors.
Excerpt:
civil procedure code, 1908 - order ix, rule 13--ex parte decree--setting aside of--on the ground of non-service of notice--evidence showing that defendant had no notice and no knowledge about the date of hearing of suit--held, in view of the matter the court below was not justified in refusing to set aside an ex-parte decree. - motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - rule 13, cpc very clearly provides that merely because of irregularity in the service of summons an ex parte decree can not set aside if it is proved that the defendants have knowledge about the date of hearing of the suit. the high court has overlooked the second proviso to rule 13 of order ix, cpc, added by the 1976 amendment which provides 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 plaintiffs claim.m.y. eqbal, j.1. this appeal by the defendant no. 1 to 3 is directed against thejudgment and order dated 25.4.1996 passed by sub judge ii lohardaga in miscellaneous case no. 8/95 whereby he has rejected the petition filed by the appellant under order ix, rule 13. cpc and refused to set aside the ex parte decree passed in title suit no. 15/92.2. the plaintiffs-respondents no. 1 and 2 filed the aforementioned suit against the appellants and defendant- respondent no. 3 for a decree of specific performance of contract. the said suit was decreed on context against respondent no. 3 and ex parte against the appellants.3. the appellants thereafter filed an application under order ix, rule 13, cpc for setting aside the decree which was registered as miscellaneous case no. 8/95. the case of the petitioners-appellants was that no summon or notice of the suit was ever served on them and they have no notice or knowledge about the ex parte decree. it was contended on behalf of the said defendant-petitioners that appellant nos. 1 and 2 are the residents of raipur, madhya pradesh and no summons were served on them.4. the learned sub judge lohardaga dismissed the said miscellaneous case and refused to set aside the ex parte decree. hence this appeal.5. mr. p.k. prasad learned counsel appearing for the defendant-appellant drawn my attention to the order sheet of relevant deeds of title suit no. 15/91 and submitted that summons of the suit was not served upon the appellants in accordance with law. learned counsel further submitted that the court below has committed error of law in disposing of the application in the manner not provided in law.6. no one appears on behalf of the respondents inspite of service of notice. from perusal of the impugned order it appears that the court below formulated three points for consideration :--(1) whether the defendants-appellant have any interest in the suit.(2) whether the ex parte decree will cause any prejudice to the defendants.(3) whether the defendant have the knowledge about the suit.7. the first two issues formulated by the court below are irrelevant in as much as the main question that has to be decided in an application proceeding for ex parte decree is whether summons or notice of the suit was served upon the defendants and they have knowledge about the hearing of the suit.8. from perusal of the order sheet of the suit it appears that although the suit was instituted on 23.9.1991 but the court fee stamp was finally paid after about two years i.e. on 4.1.1993. the order sheet dated 4.1.1993 shows that the court had ordered for issuance of summon by ordinary process and also registered summon. there is nothing on record to show that whether process for service of summon by ordinary process was either taken by the plaintiff or ever served upon the defendants-appellants. on 16.6.1993 the court below passed an order to the effect that registered summon returned with refusal. thereafter it appears from the record that in the meantime suit was transferred from one court to another court. the transferee court proceeded with the hearing of the suit ex pane against the appellants and the suit was decreed.9. the defendants-appellants affidavit denied the service of summons and also deposed on oath that summons was not served upon the appellant nos. 1 and 2 and they had no knowledge about the hearing of the suit. from perusal of the envelope alleged to have been returned with the endorsement of refusal there is no postal seal. if the post man has not been examined to substantiate the service of summons on refusal. despite all these facts the court below has erroneously recorded a finding that summons suit was served upon the appellants.10. the court below also recorded a finding that the appellants have knowledge about the suit and therefore, ex parte cannot be set aside. from the evidence adduced by the parties in the said proceeding it does not appear that the defendants-appellants have admitted that they had knowledge about the hearing of the suit. the court below also has not recorded a finding that the defendants-appellant hadknowledge about the hearing of the suit. the court below simply proceeded on the basis that since the appellant had knowledge of the institution of the suit therefore ex parte cannot be set aside.11. proviso to order ix. rule 13, cpc very clearly provides that merely because of irregularity in the service of summons an ex parte decree can not set aside if it is proved that the defendants have knowledge about the date of hearing of the suit. recently the apex court in the case of sushil kumar sabharwal v. gurpreet singh and ors., air 2002 sc 2370 has held :'the learned counsel for the landlord-respondent submitted that there is an interpleader suit filed by the appellant because there was a dispute between the heirs of the original landlord who unfortunately died and his widow and the grandsons (who are the respondents herein), each of the two was claiming itself to be the landlord and entitled to recover rent each setting up a will in its favour. the appellant has admitted in the plaint therein that he was aware of the pendency of the suit filed by the respondent in the court of the rent controller, amritsar. in fact, this admission of the appellant has weighed heavily with the high court which has opined that even if the summons was not duly served, the appellant was aware of the pendency of the suit and, therefore, the application under order ix, rule 13. cpc did not have any merit.the high court has overlooked the second proviso to rule 13 of order ix, cpc, added by the 1976 amendment which provides 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 plaintiffs claim. it is the knowledge of the 'date of hearing' and not the knowledge of 'pendency of suit' which is relevant for the purpose of the proviso abovesaid. then the present one is not a case of mere irregularity in service ofsummons; on the facts it is a case of non-service of summons. the appellant has appeared in the witness-box and we have carefully perused his statement. there is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim which he did not avail and utilise.'12. as noticed above there is no evidence to show that the defendants had notice and knowledge about the date of hearing of the suit. in that view of the matter the court below is not justified in refusing to set aside an ex parte decree. the impugned order therefore, cannot be sustained in law. for the aforesaid reason this appeal is allowed and the impugned ex parte decree as against the defendant-appellant only is set aside.
Judgment:

M.Y. Eqbal, J.

1. This appeal by the defendant No. 1 to 3 is directed against thejudgment and order dated 25.4.1996 passed by Sub Judge II Lohardaga in Miscellaneous Case No. 8/95 whereby he has rejected the petition filed by the appellant under Order IX, Rule 13. CPC and refused to set aside the ex parte decree passed in title suit No. 15/92.

2. The plaintiffs-respondents No. 1 and 2 filed the aforementioned suit against the appellants and defendant- respondent No. 3 for a decree of specific performance of contract. The said suit was decreed on context against respondent No. 3 and ex parte against the appellants.

3. The appellants thereafter filed an application under Order IX, Rule 13, CPC for setting aside the decree which was registered as Miscellaneous Case No. 8/95. The case of the petitioners-appellants was that no summon or notice of the suit was ever served on them and they have no notice or knowledge about the ex parte decree. It was contended on behalf of the said defendant-petitioners that appellant Nos. 1 and 2 are the residents of Raipur, Madhya Pradesh and no summons were served on them.

4. The learned Sub Judge Lohardaga dismissed the said miscellaneous case and refused to set aside the ex parte decree. Hence this appeal.

5. Mr. P.K. Prasad learned counsel appearing for the defendant-appellant drawn my attention to the order sheet of relevant deeds of Title Suit No. 15/91 and submitted that summons of the suit was not served upon the appellants in accordance with law. Learned counsel further submitted that the Court below has committed error of law in disposing of the application in the manner not provided in law.

6. No one appears on behalf of the respondents inspite of service of notice. From perusal of the impugned order it appears that the Court below formulated three points for consideration :--

(1) Whether the defendants-appellant have any interest in the suit.

(2) Whether the ex parte decree will cause any prejudice to the defendants.

(3) Whether the defendant have the knowledge about the suit.

7. The first two issues formulated by the Court below are irrelevant in as much as the main question that has to be decided in an application proceeding for ex parte decree is whether summons or notice of the suit was served upon the defendants and they have knowledge about the hearing of the suit.

8. From perusal of the order sheet of the suit it appears that although the suit was instituted on 23.9.1991 but the Court fee stamp was finally paid after about two years i.e. on 4.1.1993. The order sheet dated 4.1.1993 shows that the Court had ordered for issuance of summon by ordinary process and also registered summon. There is nothing on record to show that whether process for service of summon by ordinary process was either taken by the plaintiff or ever served upon the defendants-appellants. On 16.6.1993 the Court below passed an order to the effect that registered summon returned with refusal. Thereafter it appears from the record that in the meantime suit was transferred from one Court to another Court. The transferee Court proceeded with the hearing of the suit ex pane against the appellants and the suit was decreed.

9. The defendants-appellants affidavit denied the service of summons and also deposed on oath that summons was not served upon the appellant Nos. 1 and 2 and they had no knowledge about the hearing of the suit. From perusal of the envelope alleged to have been returned with the endorsement of refusal there is no postal seal. If the post man has not been examined to substantiate the service of summons on refusal. Despite all these facts the Court below has erroneously recorded a finding that summons suit was served upon the appellants.

10. The Court below also recorded a finding that the appellants have knowledge about the suit and therefore, ex parte cannot be set aside. From the evidence adduced by the parties in the said proceeding it does not appear that the defendants-appellants have admitted that they had knowledge about the hearing of the suit. The Court below also has not recorded a finding that the defendants-appellant hadknowledge about the hearing of the suit. The Court below simply proceeded on the basis that since the appellant had knowledge of the institution of the suit therefore ex parte cannot be set aside.

11. Proviso to Order IX. Rule 13, CPC very clearly provides that merely because of irregularity in the service of summons an ex parte decree can not set aside if it is proved that the defendants have knowledge about the date of hearing of the suit. Recently the apex Court in the case of Sushil Kumar Sabharwal v. Gurpreet Singh and Ors., AIR 2002 SC 2370 has held :

'The learned counsel for the landlord-respondent submitted that there is an interpleader suit filed by the appellant because there was a dispute between the heirs of the original landlord who unfortunately died and his widow and the grandsons (who are the respondents herein), each of the two was claiming itself to be the landlord and entitled to recover rent each setting up a will in its favour. The appellant has admitted in the plaint therein that he was aware of the pendency of the suit filed by the respondent in the Court of the Rent Controller, Amritsar. In fact, this admission of the appellant has weighed heavily with the High Court which has opined that even if the summons was not duly served, the appellant was aware of the pendency of the suit and, therefore, the application under Order IX, Rule 13. CPC did not have any merit.

The High Court has overlooked the second proviso to Rule 13 of Order IX, CPC, added by the 1976 Amendment which provides 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 plaintiffs claim. It is the knowledge of the 'date of hearing' and not the knowledge of 'pendency of suit' which is relevant for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service ofsummons; on the facts it is a case of non-service of summons. The appellant has appeared in the witness-box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim which he did not avail and utilise.'

12. As noticed above there is no evidence to show that the defendants had notice and knowledge about the date of hearing of the suit. In that view of the matter the Court below is not justified in refusing to set aside an ex parte decree. The impugned order therefore, cannot be sustained in law. For the aforesaid reason this appeal is allowed and the impugned ex parte decree as against the defendant-appellant only is set aside.