Rabindra Nath Seth vs Suresh Chandra Das

Mitra, J.—It appears, from the impugned order that the learned munsif allowed the application under Order 9 Rule 13 of the CPC on the ground that although the plaintiff-petitioner had sent service of summons to the defendant at 87, Kazi Nazrui Islam Road, since the petitioner did not amend the cause title of the plaint, that order allowing the petitioner to serve summons upon the defendant at.87, Kazi Nazrui Islam Road, was an irregular order. It, however, appears from the order-sheet that the summons that was sent to the defendant at the place as given by the plaintiff in the plaint was returned unserved with the peon''s endorsement ''dead''. The plaintiff-petitioner made an application on 11th March, 1983 wherein he stated, inter alia, that the defendant was delying the suit by avoiding service and he was residing at 87, Kazi Nazrui Islam Road leaving the suit premises and prayed for service of summons upon the defendant at 87, Kazi Nazrui islam Road and the Court by its Order No.6 dated 11th March, 1983, allowed the said prayer. Summons was sent to the said address of the defendant at 87, Kazi Nazrui. Islam Road and it was returned unserved with the peon''s endoresement ''refused'' which was accepted, by the court below as good service. An ex-parte decree was passed on 26th May, 1983. Lon thereafter on 21st December, 1983 an application was made under Order 9 rule 13 of the Code wherein it was merely stated by the defendant opposite party, that'' he was not aware of the title suit and summons was not served and was fraudelently suppressed. He came to know of the said suit only in December, 1983 and, thereafter, on search, came to know of the said ex-parte. decree. The learned munsif by his impugned order allowed the said application under Order 9 Rule 13 of the CPC inter alia upon a finding that the plaintiff, without amending the address of the defendant as ordered by the court that the plaintiff was to take steps, prayed for service of summons at the changed and/or new address of the defendant which prayer was allowed by the court and as such the said order was an irregular one. Being aggrieved by the said order of the learned munsif, the plaintiff-petitioner has obtained the present Civil Rule in this Hon''ble Court.

Miss Chowdhury learned Advocate for the petitioner submits since the service of summons at the new and/or other and/or changed address of the defendant was proved by the postal peon, who was examined as a witness in the proceeding, and since the court below had allowed the plaintiff-petitioner''s prayer for service of summons upon the defendant at the other and/or changed and/or new address, the learned munsif was wrong in allowing'' the application under Order 9 Rule 13 of the Code of Civil Procedure, upon a finding that an irregular order was passed by his precedessor-in-office while allowing the said prayer of the plaintiff-petitioner and as such, the impugned order suffers from material irregularity and should be set aside.

Mr. Goswami, the learned Advocate for the opposite party, however, sumits that the summons at the new and/or changed address of the defendant was sent by the plaintiff without following the statutory provisions of law, namely, the provisions of Order 6 Rule 14A(2) of the CPC and as such the learned munsif was right in setting aside the ex-parte decree and allowing the application under Order 9 Rule 13 of the Code of Civil Procedure.

Sub-Rule (1) of Rule 14A of Order 6 of the CPC states that every pleading when filed by a party, shall be accompanied by the statements in the prescribed form signed as provided in Rule 14, regarding the address of the party, while sub-rule (2) of the said Rule 14A provides that such address may, ''from time to time, be changed by lodging in court a form duly filled up and stating the new address of the party and accompanied by a verified petition.

Under the provisions of sub-rule (8) of the said Rule 14A, the Court, however, has been given a discretion in directing the service of process at any address other than the registered address of the party, if for any reason, it thinks fit, to do so, and for that no procedure has been laid down in the Code and in the facts and circumstances of the present case, it can therefore be safely held that in allowing the application of the plaintiff for permission to serve summons at the other and/or new or changed address of the defendant, the court had really acted as per the discretion enjoyed by it under the said sub-rule (8) of the Rule 14A after being satisfied about the bonafide of the plaintiff. In the present case, the plaintiff did not really pray for recording the change of address of the defendant under sub-rule (2) of the Rule 14A of Order 6 of the CPC but, actually he prayed for permission to serve summons upon the defendant at his other and/or changed and/or new address presumbly under Order 6 Rule 14A (8) of the Code of Civil Procedure. The provisions of sub-rule (2) of the said Rule 14A, therefore, are not attracted in the present case at all but the provisions of sub-rule (8) of the said Rule 14A apply with all force to the facts and circumstances of the present case.

If the plaintiff comes to know of any other address of the defendant subsequent to the filing the suit, but before summons has been served, he is to bring the said fact to the notice of the court and pray for service of summons at such other and/or new and/or changed address of the defendant end the court after being satisfied about the bonafide of the plaintiff, will direct service of process at such other or new or changed address of the defendant under Order 6 Rule 14A sub-rule (8)'' of the Code of Civil Procedure.

Again, the provisions of sub-rule (2) of the Rule 14A of Order 6 of the CPC also do not appear to be mandatory. All that is to be done by a party under that sub-rule (2) is to comply substantially with the provisions of said sub-rule in order to record the change of address. Even if a party''s application is defective for not following the provisions of the sub-rule (2) to the letters, the court should be stow to reject such application for such defect if it is found, that the party had substantially complied with the provisions of the said sub-rule (2), and the Court should not be hyper technical in such matter, inasmuch as such defendants are merely procedural defects curable at the instance of the party or by the court itself, if occasion so arises.

(sic) So far as the facts of the present case are concerned, the peon attached to the local post office, i.e., Nimta Sub-Post Office, was examined; to prove the service of summons upon the defendant at 87, Kazi Nazrul Islam Road. The opposite party in his evidence had also clearly admitted that he resided at 87, Kazi Nazrul Islam Road and not at the suit premises where his other brothersresided and that there was no enimity between himself and the postal peon. In such view of the matter, only because the plaintiff -petitioner did not pray for any amendment of the cause-title of the plaint as observed by the learned munsif, in the facts and circumstances of the case the learned munsif, however, should not have held that service of summons so made by the plaintiff-petitioner on the defendant-opposite party at 87, Kazi Nazrul Islam Road as per the court''s order dated 11th March, 1983 was an irregular order.

From the above discussions it can safely be held that summons of the suit had been duly served upon the defendant and he had also the knowledge of the suit. The learned Munsif, therefore, had acted with material irregularity in passing the impugned order without considering at all the plaintiff''s- application for service of summons on the defendant at his other and/or changed and/or new adress in the true perspective -of the provisions of sub-rule (8) of Rule 14A of Order 6 of the CPC and hence the impugned order can not be sustained in Saw and is thus set aside and the application under Order 9 Rule 13 of the CPC filed by the opposite party is also rejected. The Rule is accordingly made absolute without any order as to costs.

Let this order along with the all records be sent down forthwith to the court below by a special messenger at the cost of the petitioner. Such cost is to be deposited within one week from date.