Raj Narayan Mishra vs Basudeo Yadav

Sanjay Kumar Dwivedi, J

Mr. A.K. Sahani along with Mr. Ashwini Kumar Upadhyay, learned counsel for the petitioners and Mr. Atanu Banerjee, learned counsel for the sole opposite party.

This petition has been filed under Article 227 of the Constitution of India for setting-aside the order dated 25.11.2024 passed by the learned Munsif, Giridih in Original Suit No.130 of 2018, contained in Annexure-4, whereby, the learned Court has been pleased to dismiss the petition dated 09. 01.2024 filed by the petitioners for recalling the ex-parte order dated 23. 08.2019 and refused to accept the written statement filed by the petitioners/defendants.

Mr. A.K. Sahani, learned counsel for the petitioners submits that the opposite party/plaintiff instituted Original Suit No.130 of 2018 against the defendants/petitioners praying therein a decree for specific performance of the contract between the plaintiff and defendants dated 25.03.2003 passed in favour of the plaintiff and further prayer was made for direction to the defendants to execute the sale-deed after receiving Rs.2,000/- remaining amount of consideration and execute the sale-deed within period fixed by the learned Court. He further submits that the said original suit has been admitted and the notice has not been served upon the defendants/petitioners and vide order dated 23.08.2019, ex-parte order has been passed against the defendants. He submits that thereafter the defendants/petitioners filed a petition dated 09.01.2024 for recalling the ex-parte order, which has been refused by the learned Court. He submits that in view of that, the learned Court has wrongly not recalled the order. He submits that only paper publication was made and, thereafter, the notice has been said to be validly served. On these grounds, he submits that the impugned order may kindly be set-aside.

Mr. Atanu Banerjee, learned counsel for the sole opposite party opposed the prayer and submits that the notice has been issued and the service report was also attached with the record, which has been looked into by the learned Court and even paper publication was directed to be made and in that view of the matter, the learned Court has been pleased to reject the petition filed by the defendants/ petitioners. He submits that in view of that, there is no illegality in the impugned order. He further submits that the legislature puts the limit of 90 days in filing the written statement, however, the said petition has been filed by the petitioners after long delay and in view of that, the learned Court has rightly passed the said order. He relied upon the judgment passed by the Hon’ble Supreme Court in the case of Parimal v. Veena @ Bharti, reported in (2011) 3 SCC 545. On these grounds, he submits that this petition may kindly be dismissed.

In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record including the impugned order. From the impugned order, it transpires that service report has been received before the learned Court and it was attached with the record and thereafter paper publication was also made on 10.05.2019 for appearance of the defendants, however, they have not appeared and in view of that, the impugned order has been passed by the learned Court.

In the case of Basant Singh and another v. Roman Catholic Mission, reported in (2002) 7 SCC 531, the question for consideration before the Hon'ble Supreme Court was whether service of notice sent by registered post with acknowledgment card in terms of second proviso to Order V Rule 19-A of CPC read with Section 27 of General Clauses Act, could be held as sufficient notice. The facts involved therein were suit filed by landlord was decreed ex-parte on 30.05.1986. Prior to same, on 02.04.1986, Trial Court ordered summons by ordinary process and registered post. The notice has been served, which has been attached with the record. Apart from same, the Trial Court ordered substituted service through paper publication in local daily and, thereafter, the learned Court proceed ex-parte against the defendants and, thereafter, a petition was filed by the defendants/petitioners for recalling the ex-parte order, which has been rejected by the learned Court.

The Hon’ble Supreme Court has observed that second proviso to Order IX Rule 13 of the CPC casts an embargo on the court that a decree passed ex-parte shall not be set-aside merely on the ground that there has been an irregularity in the service of summons. Order V, proviso to sub-rule (2) of Rule 19-A CPC provides that where the summons are properly addressed, prepaid and duly sent by registered post with acknowledgement due, notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the court within thirty days from the date of the issue of the summons, the Court shall presume that notice is duly served. Further, Section 27 of the General Clauses Act, 1897 provides similar provision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence.

Second proviso to Order IX Rule 13 of CPC provides that decree cannot be set-aside merely on ground that there is an irregularity in service of summons. The question however would be whether failure to exhaust other modes of service of summons before considering application for substituted service would be such an irregularity or would be a sufficient cause to set aside ex-parte decree, however in the case in hand, the suit is still pending and that stage has not come.

It is settled law that no person can be condemned unheard. The principle of audi-alterem-partem has been enshrined as fundamental right in our legal system. Elaborate procedure provided in Order V for service of summons would not require to be highlighted to realize emphasis placed on ensuring opportunity of participation in litigation.

As observed by Hon'ble Supreme Court in Parimal's case (supra) expression 'sufficient cause' contained in Order IX Rule 13 of CPC, should be interpreted liberally and not in narrow and pedantic manner. Only caution added was that unless case fell within four corners of Order IX Rule 13 of CPC, Court had no jurisdiction to set-aside ex-parte decree.

In view of the above facts and considering that the suit is still pending for evidence and Order VIII Rule 1 of CPC is not mandatory, but it is directory, as has been held by the Hon’ble Supreme Court in the case of Salem Advocate Bar Association, T.N. v. Union of India, reported in (2005) 6 SCC 344 and in several other cases as well as by the High Courts and further considering that for deciding the suit on contest, the impugned order dated 25.11.2024 passed by the learned Munsif, Giridih in Original Suit No.130 of 2018 is, hereby, set-aside, subject to payment of cost of Rs.10,000/- to be paid to the plaintiff/opposite party by the defendants/petitioners before the learned Trial Court.

The written statement filed by the petitioners herein shall be accepted by the learned Court and the learned Court will proceed in the matter, in accordance with law and as expeditiously as possible. The parties will not take unnecessary adjournment without any cogent reason.

Accordingly, this petition is allowed in above terms and disposed of.