Shri Ganpat Nath (Since Deceased Through Lrs) and ors. Vs. Smt. Parsandi Devi and ors. - Court Judgment

Excerpt:
- - post as well as through the process server were returned with the endorsement by the process server that he tendered the summons to ganpat jogi s/o jhuttar who refused to accept the same informing that his name was ganpat nath and that his father's name was not jhuttar but was gulab nath. 11. the response was interesting.pradeep nandrajog, j.1. the parties come from a rural background and hence their conduct, behavior and understanding of the ways of the law would be appreciated by me in relation to the ways of the world in rural india.2. with the aforesaid preface, relevant facts needed to be set out for adjudication of the instant appeal may be noted.3. parsandi devi and inderjeet filed a suit seeking a decree of declaration that they are the owners of house no. 431, chirag delhi. they sought a decree for mandatory injunction against mcd to mutate their names as owners thereof and to delete the name of ganpat nath recorded by the mcd as the owner of the house. 4. mcd was imp leaded as defendant no. 1. ganpat jogi s/o jhuttar was imp leaded as defendant no. 2.5. the relief claimed affected defendant no. 2. he was proceeded against ex-parte in the suit after being ostensibly served by substituted means. fortunately for ganpat jogi the suit suffered a dismissal on merits. parsandi devi and inderjeet filed an appeal. notice in the appeal was taken out for service of the respondents i.e. mcd imp leaded as respondent no. 1 and ganpat jogi s/o jhuttar imp leaded as respondent no. 1. the summons taken out by registered a.d. post as well as through the process server were returned with the endorsement by the process server that he tendered the summons to ganpat jogi s/o jhuttar who refused to accept the same informing that his name was ganpat nath and that his father's name was not jhuttar but was gulab nath. similar was the report of the postal authorities.6. on 4.5.1981, learned appellate court directed service to be effected by beat of drums. accepting the report of the process server who effected service by beat of drums, respondent no. 2 i.e. ganpat jogi s/o jhuttar was proceeded against ex-parte. appeal succeeded. decision of the learned trial judge was reversed. suit was decreed.7. on 30.8.1984 an application under order 41 rule 21 cpc was filed by ganpat nath s/o gulab nath (appellant in the instant appeal) stating that he was not served with summons in the suit nor was he served with summons in the appeal. he stated that the stated defendant ganpat jogi s/o jhuttar was his mis-description for the reason he was adopted by gulab nath and hence on adoption he was known as ganpat nath s/o gulab nath.8. the learned appellate judge decided the said application vide impugned order dated 16.10.1996. noting the report of the process server and the fact that the record of the nazarat branch showed that the appellants/respondents had deposited necessary charges for summons to be served by beat of drums and that the process server had withdrawn the said sum, notwithstanding formal proof of proclamation by beat of drums not forthcoming on record, it was held that there was enough evidence to sustain service upon the applicant i.e. ganpat nath by beat of drums.9. learned appellate court thereforee dismissed the application filed by ganpat nath s/o gulab nath and refused to recall the ex-parte judgment and decree allowing the appeal.10. during arguments in the instant appeal i asked learned counsel for the appellant as to why did ganpat nath not accepted the summons tendered to him for the reason he knew that his natural father was jhuttar and that his natural father has named him ganpat jogi. learned counsel was questioned that ganpat nath could have understood that the summons tendered to him describing him as ganpath jogi s/o jhuttar were meant for him.11. the response was interesting.12. it was submitted by learned counsel for the appellant that ganpat nath believed that if he accepted a notice issued in the name of ganpat jogi s/o jhuttar it would have meant that he had accepted that he was ganpat jogi s/o jhuttar and not ganpat nath s/o gulab nath. for said reason he did not accept the summons.13. i asked learned counsel for the respondents as to why his clients did not amend the memo of parties to show that the defendant-respondent was ganpat jogi s/o jhuttar claiming himself to be ganpat nath s/o gulab nath. learned counsel for the respondent replied that if his clients had done so, they believed that they would have accepted that ganpat jogi s/o jhuttar was ganpath nath s/o gulab nath.14. the relevance of the respective stand of the parties would have affected the right of ganpat nath to claim inheritance under gulab nath as he was, as per his claim, the adopted son of gulab nath and on his death inherited the properties of gulab nath.15. i eschew reference to the testimony of aw-1, aw-2 and aw-3, the 3 witnesses of the appellant who deposed before the appellate court when appellant's application under order 41 rule 21 cpc was listed for recording evidence. i also eschew reference to the adoption deed ex.aw-2/1 as also ex. aw- 2/2 being the mutation in favor of ganpat nath as son of gulab nath. i also eschew reference to aw-2/3 being a title document in favor of ganpat nath s/o gulab nath pertaining to compensation of land belonging to gulab nath received by ganpat nath.16. i eschew reference to the testimony of rw-1 and rw-2 and the record pertaining to service by beat of drums for the reason the parties stood by their rigid stand and notwithstanding appellant knowing that in relation to a property which was mutated in his name in the municipal records a suit was filed, yet in spite thereof did not receive the summons nor responded thereto because the summons were issued in the name of ganpat jogi s/o jhuttar and appellant believed that if he responded to the said summons it would mean that he accepted that he was not ganpat nath s/o gulab nath but was ganpat jogi s/o jhuttar.17. the rural background of the appellant has obviously resulted in his innocent understanding of the ways of the world. his conduct, when appreciated with reference to the conduct of a person from a rural background is not merit-less.18. valuable rights of ganpat nath have got affected by the impugned decision passed by the learned appellate court. if for no other reason, impugned order has to be set aside and appeal is required to be re-heard on merits, for the reason, that valuable rights of ganpat nath would be lost in absence of any meaningful representation by him.19. for the reasons stated herein above i hold that ganpat jogi s/o jhuttar claiming himself to be ganpat nath s/o gulab nath had sufficient cause for not appearing when the appeal was listed for hearing and hence would be entitled to have the appeal re-heard and disposed of on merits. 20. the appeal is allowed. order dated 16.10.1996 is set aside. application filed by the appellant under order 41 rule 21 cpc is allowed.21. parties shall appear before the learned appellate judge on 24.3.2008 when appeal would be formally listed for re-hearing.22. lcr be returned forthwith.23. no costs.