Prakash Chandra Gupta vs Musarraf

Anil Sharma, J.—Arguments heard. Petitioner has filed this petition u/s 115 of CPC against the order dated 25/1/2011 passed in MJC No. 2/2010 passed by 10th Additional Judge to the Court of First Civil Judge, Class-II, Gwalior allowing the application filed by respondents under Order 9 Rule 13 read with Section 151 of CPC for restoration of civil suit No. 31-A/2009 which was dismissed ex parte vide judgment and decree dated 13/11/2009.

The brief facts of the case are that petitioner/plaintiff has filed a suit for eviction against the respondents/defendants in which notice by publication in newspaper was dons as the service through ordinary mode was not successful. In the absence of defendants, learned trial Court proceeded ex parte against him and thereafter passed an ex parte judgment and decree dated 13/11/2009. The defendants filed an application under Order 9 Rule 13 read with Section 151 of CPC after the execution of decree on the next day alongwith application u/s 5 of Limitation Act. Learned lower Court allowed the application on the ground that the trial Court has directed the publication of notice to the defendants alongwith notice by ordinary mode with a direction that if the defendants are not found or are died, the service of notice be pasted on the suit premises. The said order of notice by ordinary mode was not complied with by the plaintiff and therefore, on the next date of hearing, the Court again ordered for ordinary service and thereafter, the case was transferred to other Court and the other court, proceeded ex parte.

Learned counsel for the petitioner has submitted that the suit premises has been vacated in execution proceedings and at the time when application under Order 9 Rule 13 was considered by learned lower Court, the suit property was already demolished, therefore, the tenanted premises is not in existence at present. It is further submitted that learned trial Court has not considered the provisions of proviso second to Order 9 Rue 13 of CPC and allowed the application on the ground of defect in service. The proviso second to Order 9 Rule 13 of CPC reads as under:-

Setting aside decree ex parte against defendants.-In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set side as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further 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.

On perusal of proviso second, it is clear that a decree passed ex parte cannot be set aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff''s claim.

Paper publication of the notice has been done and defendants have taken a ground that the daily newspaper Nai Dunia was not seen by them because they do not purchase that newspaper. Under Order 5 Rule 20 of CPC, publication of notice is necessary and after publication of notice, presumption is that defendants have the knowledge of the suit pending in the Court. It is immaterial whether paper is seen by concerned or not.

Learned counsel for the respondents has submitted that learned trial Court is not justified in passing the impugned order because there was irregularity in service of summons and case was transferred to the other Court and on the same day, after the order of proceeding ex parte affidavits were filed by the plaintiffs. Learned counsel for the respondents has cited the judgment of this Court in the matter of Satis Construction Company, Bhilai Vs. Allahabad Bank, Durg, 1999 (1) MPLR 329, in which it has been held that if the ex parte decree passed after order by allowing substituted service under Order 5 Rule 20 of CPC, mandatory provisions of Order 5 Rule 20 have not been complied with. Ex parte decree is liable to be set aside. On the same point, another judgment of this Court in the matter of Kamlabai Vs. Dhula, has also been cited.

The second proviso to Order 9 Rule 13 CPC has been added in the year 1999 which came into force w.e.f. 1/7/2002, therefore, both these judgments cited by learned counsel for the respondents have been passed in the absence of amended provisions, therefore, they do not apply to the present case. The intention of Order 5 Rule 20 of CPC is only to inform the defendant by substituted service regarding pendency of the suit and irregularity in summons is no ground for setting aside the ex parte decree.

Learned counsel for the respondents has cited judgment of this Court in the matter of Ram Narayan Vs. State of Bank of Indore and Another, which also relates to amended proviso which came into force w.e.f. 1/2/1977 while the present second proviso is added by amended Act of 1999 w.e.f. 1/7/2002.

Learned counsel for the respondents has also cited judgment of Hon. Apex Court in the matter of Manick Chandra Nandy Vs. Debdas Nandy and Others, in which it has been held that under revisional jurisdiction, the finding on evidence given in proceedings under Order 9 Rue 13 of CPC, cannot be interfered by revisional Court. It is held that such interference is illegal. But in the present case, the finding of fact have been given in trial Court and lower Court has committed illegality in passing the impudent order by not considering the second proviso to Order 9 Rule 13 of CPC.

Learned counsel for the petitioner has cited judgment of Hon. Apex Court in the matter of Sunil Poddar and Others Vs. Union Bank of India, , in which it has been held that once a summons is published in a newspaper having wide circulation in the locality, it does not lie in the mouth of the person sought to be served that he was not aware of such publication as he was not reading the said newspaper. It is further held that even if the case is transferred from Civil Court to DRT, it was not necessary for the plaintiff to get the summons published in newspaper. It is further held that if the defendant had notice of date of hearing and sufficient time to appear and answer the claim, he cannot put forward a ground of non-service of summons for setting aside ex parte decree. Considering the judgment cited by learned counsel for the petitioner and further considering the provisions of second proviso to Order 9 Rule 13 of CPC, the order passed by learned lower Court is not legal as it has been passed overlooking the amended proviso second of Order 9 Rule 13 of CPC. Further, now restoration of suit is of no use because tenanted premises does not exist, therefore, petition is allowed and 25/1/2011 passed in MJC No. 2/2010 passed by 10th Additional Judge to the Court of First Civil Judge, Class-II, Gwalior is hereby set aside. Parties are directed to bear their own cost.