Shakur vs Anjani Kumar Singhania

Amitav Kumar Gupta, J.—The present Civil Revision application has been preferred against part of order dated 12/6/2013, passed by the Subordinate Judge, VIIth, Deoghar, in Misc. Case No. 02 of 2004, arising out of the Title Suit No. 111 of 1999 wherein an ex-parte decree was passed on 29th May, 2003 against the opposite parties, which was recalled by the court on an application dated 20/12/2004 under order IX Rule 13 read with Section 151 C.P.C.

The brief facts of the case is that the petitioner/plaintiff and others filed the aforementioned suit against Anjani Kumar Singhania and other opposite party/defendant for a decree declaring the sale deeds as illegal and void also for a declaration that the plaintiffs are the owners of the scheduled suit land and for confirmation of their possession and, in case the plaintiffs are dispossessed during the pendency of the suit, then for recovery of possession as well as for permanent injunction over the scheduled suit property.

On admission of the suit, notices were issued to the opposite parties/defendants under registered cover and through Nazarat i.e. through process of court. Anjani Kumar Singhania, defendant No. 1, appeared in the suit and the court vide order dated 9/6/2000 found and accepted that there was sufficient service of notice on the defendants. Accordingly, except for defendant No. 1, the suit was fixed for ex-parte hearing against the other defendants. It transpires that defendant No. 1 appeared in the suit but he did not file any written statement neither contested the suit. Therefore, ex-parte judgment and decree was passed on 29/5/2003.

The decree holders/petitioners filed Execution Case No. 4 of 2003 for execution of the decree. In the said case on 20/1/2014, Bhagwati Pd. Singhania (defendant No. 2 in the original suit No. 111 of 1999/O.P. No. 2 in the instant revision), Pawan Singhania, Savitri Devi, Rajesh Singhania, Ashok Kr. Singhania and Harish Singhania filed an application under Order XXI Rules 97, 99 and 101 and Order IX Rule 13, Sections 47 and 151 of CPC for stay of the execution case and for setting aside the ex-parte decree and dismissal of the case. The said application was registered as Misc. Case No. 2 of 2004.

The case of defendant No. 2 Bhagwati Prasad Singhania was that no summons or notice of the suit was served on the defendants Bhagwati Prasad Singhania (D-2) and Moti Singhania (D-4) in original suit. It is averred that no person by the name of Bimal Singhania, who has been arrayed as defendant No. 3 in the original suit, exists in the family. That the defendants opposite parties Nos. 2 and 4 reside at Kolkata and no summons or notice were served on them due to which they could not appear in the suit. That Motilal Singhania (D-4) was sick and he passed away on 6/6/2003. That the defendant was surprised to know that an ex-parte decree has been obtained in Title Suit No. 111/1999. Whereafter they inspected the file through their lawyer on 5/1/2004 accordingly, they got knowledge that on the basis of ex-parte decree in Title Suit No. 111 of 1999 the decree holders had filed the execution case No. 4 of 2003.

Heard the learned counsels. On perusal of the impugned judgment it is noticed that both the parties led their evidence which has been discussed from para-6 onwards and the court below in para-19 has considered the materials on record and dealt with the matter regarding setting aside of the ex-parte decree.

Learned counsel for the petitioners has contended that the learned court below has passed the impugned order without appreciating the settled legal position that under Order IX Rule 13 CPC, the material finding recorded by trial court in respect of serving of notice has to be challenged and set aside otherwise the court has no jurisdiction to set aside an ex-parte decree. It is argued that the court below in Title Suit No. 111 of 1999 by order dated 9/6/2000 found that defendant No. 1 appeared and rest of the defendants were absent. That the summons were sent by registered post and receipts were filed. That more than one month had passed, so service is sufficient. That the said finding was not challenged for setting aside the ex-parte decree. It has been urged by the learned counsel that in para-19 of the impugned judgment the evidence of Bhagwati Prasad Singhania (D-2) has been discussed wherein in cross-examination, Bhagwati Prasad Singhania has stated that he, along with other defendants had appeared in the original suit but he did not file the written statement which shows that O.P. No. 2 was served with notice and summon of the suit but he intentionally refrained from filing his written statement and accordingly the suit was fixed for ex-parte hearing whereafter the judgment and decree was passed.

It is contended that the trial court has failed to consider and appreciate this fact and the said finding was not challenged for setting aside the ex-parte decree and the trial court has committed an error by passing the judgment/order of setting aside the ex-parte decree. In support of the contention, reliance has been placed on the decision of the Supreme Court in the case of Parimal Vs. Veena @ Bharti, ; State of Orissa and Others Vs. Sibaram Baral (Simaram Barai), ; and R.M.T.S.S. Dhanasekaran Vs. State Bank of India, Dindigul, .

Considering the submissions advanced by learned counsel for the petitioner, it is necessary to state that Order IX Rule 13 CPC envisage that a request to the court to set aside an ex-parte decree can be made if the applicant/party satisfies the court, firstly, that summons had not been duly served on the party or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. This being the statutory mandate and on perusal of the evidence discussed in the impugned judgment, it is evident that the petitioners/plaintiffs had produced and filed the receipts or registered notice, i.e. Ext-A-A5. The court below has discussed the said exhibits and found that the receipts were in the name of A.K. Singhania, Alaudin Mian, Barkat Mian, Usman Mian, Moti Singhania and Vinod Singhania but no receipt of sending notice by registered post to Bhagwati Prasad Singhania (D-2) was filed or proved to show that there was service of summons or notice upon Bhagwati Prasad Singhania. It is noticed that the court below has discussed the evidence of the witnesses of the petitioners and found that none of the witnesses have stated about service of summons or notice on Bhagwati Prasad Singhania.

The argument of the learned counsel that in para-19 of the impugned judgment, Bhagwati Prasad Singhania (D-2) has stated in his cross-examination that he appeared in the case is not supported by any of the witnesses of the petitioners/plaintiffs. In fact, in para-10 of the judgment, the evidence of Bhagwati Prasad Singhania, who was examined as P.W.-12, has been discussed wherein it has been stated by him in cross-examination that he had not appeared in the original suit. Bhagwati Prasad Singhania in his examination in chief, has categorically stated that there was no service of summons or notice on him neither did he have any knowledge about the suit. That on hearing the rumour, he contacted the lawyer whereafter, on inspection of the file, he got knowledge of the ex-parte decree. It is relevant to point out that the process server was not examined to establish the fact of service of summons or notice upon Bhagwati Prasad Singhania. The petitioner has not brought on record any document or order-sheet to show that Bhagwati Prasad Singhania had appeared in the original suit or the court had made any observation regarding the appearance of Bhagwati Prasad Singhania or adjourning the matter for filing of written statement on the prayer of Bhagwati Prasad Singhania. In fact, the trial court has discussed the evidence in thread-bare details and after considering and appreciating the material evidence on record, has arrived at the conclusive finding that the notice was not properly served on Bhagwati Prasad Singhania and due to non-service of the notice, the defendant had sufficient cause for not appearing in the suit and he did not have knowledge of the ex-parte decree.

The decisions relied on by the learned counsel are not applicable to the facts of the present case. In the case of Parimal v. Veena (supra), it is apparent that the respondent-wife had refused to receive the notices sent to her by the court on two occasions and this was reported by the process server. She refused to accept the notice through registered A/D. Thereafter, summons were affixed at the house of the respondent-wife but she chose not to appear. In the said case a publication of the notice was made in the newspaper but she did not appear whereupon ex-parte proceeding was initiated and decree was passed. The respondent-wife appeared and filed an application under Order IX Rule 13 which was dismissed by the trial court and on appeal the High Court set aside the order of the trial court. Thereafter, the matter came up to the Hon''ble Supreme Court and in the said case, the judgment and order of the High Court was set aside with observation that, the High Court was duty bound to set aside the material findings of the trial court regarding the service of summons on the respondent-wife. Thus, in the given matrix of facts of that case, the observation was made and it is apparent that in the present case no evidence has been brought on record regarding service of notice or summons on the defendant Bhagwati Prasad Singhania. Accordingly, the decision relied upon by the petitioner, is not applicable to the facts of the present case. Likewise, the facts of the case of State of Orissa v. Shibaram Baral (Supra) is not applicable in the present case. In the case of R.M.T.S.S. Dhava Sekharan v. State Bank of India (supra) there was due service of notice and the facts are not applicable to the facts of the present case.

It has been argued by the learned counsel that Bhagwati Prasad Singhania has not disclosed the fact as to from whom and on what date he got knowledge about the ex-parte decree and in the absence of such disclosure the court has no jurisdiction to entertain the application or suit as per Section 3 of the Limitation Act. To buttress his contention, learned counsel has cited the ratio rendered in the case of Firoz Khan and Others Vs. Bibi Hasina Khanam and Others--> and in the case of Mahabir Singh Vs. Subhash and Others, .

On going through the aforesaid decision, it is apparent that in the said cases, there was due service of summons, which is lacking in the present case. Thus, the ratio of the decision rendered in the aforesaid cases are not applicable to the facts of the present case as is evident from the evidence discussed that the petitioners have not brought on record any documents to show that there was due service of notice or summons upon Bhagwati Prasad Singhania or he had knowledge of the case.

The trial court has discussed this aspect of the matter and on the basis of the evidence held that Bhagwati Prasad Singhania got the knowledge of the ex-parte decree on 5/1/2004 whereafter he filed the Misc. case within 30 days of getting knowledge of the ex-parte decree and held that the application was not barred by limitation under Section 122 of the Limitation Act.

In this connection, it is relevant to refer to the decision of the Apex Court in the case of Bhagmal and Others Vs. Kunwar Lal and Others, wherein in para-7 and 8 the Hon''ble Supreme Court held that hyper-technical approach is not justified regarding filing a separate application under Section 5 of the Limitation Act when the application under Order IX Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application holding that procedure is after all hand maid of justice. In the case of Rabindra Singh Vs. Financial Commissioner, Coopration, Punjab and Others, , it has been held that a defendant in a suit has more than one remedy as regards setting aside an ex-parte decree. The defendant can file an application for setting aside an ex-parte decree, file a suit stating that service of notice was fraudulently suppressed, prefer an appeal and file an application for review. It was held that what matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in absence of any express provisions, having regard to the principles of natural justice in such a proceeding courts have ample jurisdiction to set aside an ex-parte decree, subject of course to the statutory interdict.

It is well-settled that the non-service of summons or notice gives sufficient cause for non-appearance in a suit and the court has the jurisdiction to set aside the ex-parte decree.

Apparently, in the instant case there was no due service of summons, as per the evidence discussed in thread-bare details in the impugned judgment and the defendant had no knowledge of the suit. Thus the application under Order IX Rule 13 was entertained in terms of the statutory mandate of the provisions of order IX Rule 13.

It is the claim of the defendant that he is the owner of the suit property and in such circumstances, the court finds force in the claim that the defendant would not allow the suit to be decreed ex-parte.

To reiterate it is noticed that in the present case, the court below has considered the oral and documentary evidence and after appraisal of the evidence, has recalled the ex-parte order. The findings recorded by the court below is justified and the parties have been given the opportunity to contest the suit on merit instead of decreeing the suit on technical objection.

Learned counsel for the petitioner has submitted that the trial has lingered for no fault of the plaintiff. It is informed by the learned counsel for the defendant/O.P. No. 2, herein, that the cost, as imposed by the court below has already been deposited and the written statement has been filed on 22/7/2013 and the defendant shall co-operate in expediting the disposal of the suit.

Considering the submissions of the parties of the learned counsels and in view of the discussions made above, the order for allowing the application under Order IX Rule 13 read with Section 151 CPC passed by the trial court is hereby confirmed. The suit is of the year 1999 accordingly the court below is directed to expedite the trial and dispose off the suit at the earliest and no unnecessary adjournment shall be granted except in compelling circumstances and the parties shall co-operate in early disposal of the said suit.

With the aforesaid direction and observation, this revision application stands dismissed.