Anil Kumar and Another vs Amit Narayan Sharma and Others

Poonam Srivastav, J.—Heard learned Counsels for the respective parties.

The instant civil revision application has been preferred against the order dated 31st July 2009, passed by the Subordinate Judge-VI, Ranchi, in Misc. Case No. 15 of 2007 arising out of Title Suit No. 251 of 2006. An ex parte decree was passed on 25th May 2007 against the opposite parties, which was recalled by the Court on an application under Order IX Rule13 read with Section 151 of the C.RC.

The facts of the case, in short, are that a declaratory suit was preferred by the Plaintiffs along with an injunction application on 16-9-2006. The suit was admitted and notices were issued to the opposite parties on 18-9-2006 under registered cover as well as through Nazarat and on 27-9-2006 the service was effected on Defendant No. 1, who received notice on behalf of herself and as also on behalf of Defendant No. 2. Notice was also sent through special messenger but the same was refused on the ground that they have already been served. However, this service was not accepted by the Court and, therefore, the Plaintiff was directed to effect substituted service by, publication vide order dated 5th December 2006. Accordingly, notices were published in the daily Hindi newspaper "AAJ". Thereafter the Court vide order dated 10th January 2007 passed order holding that the service was sufficient upon the Defendants and fixed the suit for ex-parte hearing and the ex-parte judgment and decree was passed on 25th May 2007. Immediately thereafter an inspection slip was moved along with Vakalatnama through counsel on behalf of both the Defendants on 29th May 2007 and the inspection was done on 30th May 2007. The Miscellaneous Case No. 15 of 2007 was filed on behalf of the Defendants-opposite parties under Order IX Rule 13 read with Section 151 of the CPC for setting aside the ex parte judgment and decree as the Defendants did not receive the notice and the publication in daily Hindi newspaper "Aaj" was not sufficient for the reasons that; it is not widely circulated. It has Very limited circulation and the Defendant is not subscriber of newspaper "AAJ".

Both the parties led evidence and the perusal of the judgment shows that the evidence has been discussed in detail in paragraph 6 onward, and the Court below was of the view that since the prior service effected on one of the Defendant on behalf of both the Defendants was held by the Court not to be sufficient and publication by substituted service was directed to be made in the Hindi daily newspaper, therefore, the Court was not inclined to re-examine the matter. However, oral evidence was also led and the Plaintiff admitted in his cross-examination that he is not subscriber of "Aaj" newspaper. The findings recorded by the Court below is that the publication of notice made in the newspaper Aaj was not under a popular circulation and therefore, the substituted service by publication cannot be held to be sufficient. However, before allowing the application under Order 9 Rule 13 read with Section 151 of the CPC a cost of Rs. 3000/ - (Three thousand) was imposed upon the Defendants/opposite party Nos. 1 and 2 and the Defendants/opposite party Nos. 1 and 2 were granted a definite timefor bringing on record the written statement.

Counsel appearing on behalf of the Plaintiffs/Petitioners tried to lay emphasis on the fact that the notice was sufficient at the very initial, stage, but the same has not been accepted by the Court below for the reasons, which are liable to be ignored and the order passed in the Miscellaneous Case is also liable to be quashed, in view of second proviso to Order 9 Rule13 of the Code of Civil Procedure.

After hearing learned Counsel at length, I am of the view that in the instant case the Court below has thrashed out the oral evidence as well as documentary evidence and arrived at a conclusion after appraisal of evidence, I am not inclined to reappraise the entire evidence at this stage specially when an opportunity is granted to the Defendants/opposite parties to contest the suit on merit after imposing cost Reliance has also been placed by the Court below while allowing the application filed under Order 9 Rule 13 of the CPC on the decision of the Apex Court reported in 2001 SAR (Civil) 741.

In my view findings recorded by the Court below are justified, the Court has held that the parties should be given an opportunity to contest the suit on merit instead of decreeing the suit on technical objection. It is also to be born in mind that the Plaintiff''s claim that a valid right has accrued in his favour is only after a one sided hearing. The evidence was accepted without any cross-examination or rebuttal on the part of Defendants, therefore, the judgment is a lopsided one. The cost imposed is deposited and therefore the Defendants are entitled for a fair hearing.

In view of this, though I do not propose to interfere in the judgment of the Court below passed in the Miscellaneous case, but the objection of the learned Counsel on behalf of the Plaintiffs appears to be fully justified that there is already sufficient delay in the decision of the suit and the Plaintiffs are suffering loss for no fault on their part. They have taken precaution to effect the service but in spite of this, the suit is pending at the trial stage.

In view of all these submissions, the order allowing the application under Order 9 Rule 13 read with Section 151 of the CPC is, therefore, confirmed and the parties are allowed to contest the suit on merit. The Court below is directed to ensure that no further delay is caused in disposal of the suit, since the suit was instituted as far back as in the year 2006 and a long period has already elapsed in disposal of the suit.

I am informed by learned Counsel appearing on behalf of the Defendants/opposite party Nos. 1 and 2 herein that the cost as imposed by the Court below has already been deposited and the written statement has been filed.

Before parting with the judgment, the Court: below is directed to dispose of the suit as early as possible without granting any undue adjournment to either of the parties. In event, certain compelling circumstances of adjournment arises, it shall be done only after recording the reasons in writing otherwise suit shall proceed, if possible, on day to day basis.

With the aforesaid observations and directions, this revision application stands dismissed.