Gauhati University vs Surya Kumar Borah

D. Biswas, J.—This petition u/s 115 real with Section 151 of the CPC (for short CPC) and/or Article 227 of the Constitution has been directed against the order dated 1.6.1995 passed by the learned Asatt. District Judge, Sibsagar dismissing the Misc. Appeal No. 1/94 arising out of order dated 11.3.1993 passed by the Munsiff No. 1, Sibsagar in Misc, (J) Case No. 19/90 and ex parte decree dated 5.5.1997 passed in T.S. No. 87/86.

This petition has been based on a number of grounds challenging the legality and propriety of the exparte decree and the subsequent proceedings arising there from Title Suit No. 87/86 was instituted in the Court of the Munsiff No. 1 at Sibsagar by Shri Surya Kumar Borah for declaration and correction of age recorded in the Matriculation certificate. The suit was decreed exparte by the learned Munsiff on 5.5.1987. The Defendant University filed a petition under Order 9, Rule 13 of the CPC in the year 1990 for setting aside the ex parte decree dated 5.5.1987 on the ground that they were not served with any summons in the case. The said petition was dismissed by the learned Munsiff on the ground that the Universiy filed the petition after expiry of the statuary period of 30 days from the date of knowledge as alleged. The appeal preferred before the Court of learned Asstt. District Judge (sic) (Mise. Appeal No. 1/94) was also dismissed.

The arguments advanced on behalf of both the parties necessitates determination of the following:

(1) Whether the mandatory provisions of the CPC embodied in Order 5, Rule 1 and Order 9, Rule 6 have been followed before passing of the impugned ex parte decree, and if not. whether the decree passed in flagrant violation of law could be sustained?

(2) Whether the learned Court of the learned Munsiff at Sibsagar had jurisdiction to entertain the suit as the principal seat of Administration of the University is at Guahati beyond the territorial jurisdiction of the learned courts below?

(3) Whether the courts below failed to appreciate the evidence on record in its true perspective and (sic) usly dismissed the petition under Order 9, Rule 13 (sic) justice have a bearing on the question of (sic)?

The first point that comes up for consideration is the alleged violation of the provisions of the procedural law. Learned counsel for the Petitioner alleged that there has been no service of summons in this case and, therefore ex parte decree passed by the learned Munsiff is a nullity. Sub-rule (1) of Rule 1 of Order 5 of the CPC provides as follows:

(1) When a suit has been duly instituted a summons may be issued to the Defendant to appear and answer the claim on a day to be therein specified:

Provided that no such summons shall be issued when the Defendant has appeared at the presentation of the plaint and admitted the Plaintiff claim.

A look into the aforesaid provisions makes it abundantly clear that on instituted on of a suit the court has to issue summons to the Defendant to appear and answer the claim on a date to be specified therein. The proviso to the aforesaid rule makes it obligatory on the part of a Court to issue and cause service of summons before proceeding with a suit. I have examined the records of the Trial Court/specially the order sheets. Strangely except the order passed on the very first day to the effect that summons be issued, there is nothing on record to show that summons was in fact issued and served. It is therefore, clear that the provisions of Order 5, Rule 1 have not been followed in the instant case.

Let us now refer to the provision of Order 9, Rule 6, which is quoted below:

Procedure when only Plaintiff appears-(1) Where the Plaintiff appears and the Defendant does not appear when the suit is called on for hearing then-

(a) when summons duly served - If it is ''proved that the summons'' was duly served, the Court may make an order that the suit be heard ex parte;

(b) when summons not duly served - If it is not proved that the summons was duly served the Court shall direct a second summons to be issued and Served on the Defendant;

(c) When summons served but not in due time- If it is proved that the summons was served on the Defendant, but on insufficient time to enable him to appear and answer on the day fixed by the Court and Shall direct notice of such day to be given to the Defendant;

where it is owing to the Plaintiffs, default that the summons was not duly served or was not served insufficient time, the Court shall order the Plaintiff to pay the costs occasioned by the postponement.

The above provisions require a Court before making an order that the suit be heard ex parte to satisfy itself that the summons was duly served. It further shows that in a case, where it is not proved that the summons was duly served, the court is to direct that summons be issued and served on the Defendant.

As stated above in the instant case, no summons was issued at all by the Court below. Ignoring the provisions of law, the Court fixing a date for ex parte hearing without making any enquiry as to whether summons was issued at all and, if so whether it was served. In the utter disregard to the provisions of law proceeded and decreed the suit ex parte.

Situated as above, this Court is to decide whether the impugned ex parte decree can be reversed in exercise of powers of this Court under Article 227 of the Constitution. It is pertinent to point out that this petition has been filed invoking provisions of Section 115 read with Section 151 of the Code of Civil Procedure, alternatively under Article 227 of the Constitution. The law in this behalf is settled. There is no doubt that the High Court should not normally interfere with an order in exercise of its powers u/s 115 of the CPC unless It is a case of improper-exercise of jurisdiction resulting into miscarriage of justice. But, in a case where the irregularities and improprieties committed by a subordinate Court shakes the conscience and are in gross violation of the provisions of law, the High Court shall exercise its powers of superintendence under Article 227 to interfere with such an order. The instant case is an example where the Trial Court acted unfairly and in an arbitrary manner giving a go-bye to the mandatory basic provisions of the procedural law. The Defendant University had no opportunity to place its case for no fault of their own. The impugned judgment and decree, therefore, cannot be allowed to stand.

Before we take up the question of jurisdiction, it would be appropriate to deal With the last point of object ion which is a mixed question of law and fact. The Court below rendered a concurrence finding holding that the delay of 32 days in preferring the petition under Order 9, Rule 13 of the CPC was not properly explained. On consideration of the materials on record this Court is not inclined to interfere with the finding of the Courts below on this point. In the face of this. The decision as Chhelaram Vs. Manak, and State of Assam v. Anil Ch.Das (1990) 1 GLR 183 cited on behalf of the opposite party are not being (sic) to.

The discussion above leads to (sic) the impugned order cannot be (sic) circumstances. Therefore, at this (sic) any observation on the question of (sic)

The aberrations discussed above (sic) that there has been a total failure of (sic). The ratio available in Ashok Kumar Vs. Sangitabai, placed on behalf of the opposite parties cannot retrieve the situation. Hence, the impugned ex parte decree dated 5.5.1987 has to be quashed. Accordingly, this petition is allowed and the impugned judgment and decree dated 5.5.1987 is quashed in exercise of powers under Article 227 of the Constitution and consequent, thereupon the orders passed in Misc. (J) Case No. 19/90 and Misc. Appeal No. 1/94 are also set aside. Title Suit No. 87 or 1986 afresh in accordance with law including the question of territorial (sic) No order as to costs.