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Rakesh Kumar Saraf v/s The Administrator, Bhagalpur Municipal Corporation

    C.R. 2008 Of 2005

    Decided On, 16 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE CHANDRAMAULI KR. PRASAD

    For the Appearing Parties: Vishnudeo Narain, Pankaj Majjorwar, Parmeshwar Prasad, Manoj Kumar Sinha, Advocates.



Judgment Text

CHANDRAMAULI KR. PRASAD, J.

(1.) Plaintiff, aggrieved by the order dated 30th of July, 2005 passed by the Subordinate Judge, I, Bhagalpur in Misc. Case No. 13 of 2004, setting aside the ex parte judgment and decree dated 18.12.2000 passed in T.S. No. 137 of 1999, has preferred this application.

(2.) Plaintiff filed T.S. No. 137 of 1999 against survey entry impleading Bhagalpur Municipal Corporation, hereinafter referred to as Corporation, as the sole defendant. By an ex parte judgment and decree dated 18.12.2000, suit was decreed. Defendant, aggrieved by the same, filed application Under Order 9 Rule 13 of the Code of Civil Procedure, hereinafter referred to as 'CPC', for setting aside the aforesaid ex parte judgment and decree. Said case was registered as Misc. Case No. 14 of 2001. Defendant averred in the application that summons of title suit was received by Md. Javed, Law Clerk on 20th of August, 1999 when the employees of the Corporation, on the call of Mahasangh of the Non-gazetted officers, were on strike and the office was completely paralysed. According to the defendant, strike continued for some time and after it was called off, the Law Cl

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erk Md. Javed, who was on the verge of retirement, did not produce the summon before the Administrator of the Corporation and superannuated from service in the month of January, 2000. It was further averred that the suit was not entered in the Suit Register nor the said Law Clerk handed over the charge of the suit to his successor. Thus, it was prevented by sufficient cause from appearing in the case.

(3.) According to the defendant, he came to know about the ex parte decree through one Dinesh Chandra Ghosh, an Amin of the Corporation, who had visited the spot in connection with encroachment in the light of the order of the High Court. After it came to know about the decree, got the record inspected on 7.7.2000 and found that the ex parte decree has been passed. The defendant submitted that it was prevented by sufficient cause from appearing in the case and in the aforesaid premise, prayed for setting aside the ex parte decree.

(4.) Along with the application, defendant had also filed application for condoning the delay in filing the application under Order 9 Rule 13 of the CPC.

(5.) Plaintiff filed rejoinder to the same and submitted that the application filed for setting aside the ex parte judgment and decree is hopelessly time barred. Plaintiff also pleaded that summon was served on the Law Clerk personally on 20.8.1999. It also averred that the retirement of Md. Javed has no bearing on the case and accordingly, prayed for dismissal of the application.

(6.) Defendant in support of its case, examined two witnesses. P.W.1 Prabhas Singh is a Clerk in the Corporation and has stated in his evidence that he had no knowledge about the filing of T.S. No. 137 of 1999 and the said suit was not entered in the Suit Register. He has further stated that he learnt about the case in the first week of July, 2001 and informed the Administrator about the ex parte judgment and decree passed in the case. The testimony of this witness that filing of Title Suit No. 137 of 1999 is not entered in the Suit Register of the Corporation, has not been questioned by the plaintiff.

(7.) P.W.2 Harendra Pathak is another Clerk in Bhagalpur Municipal Corporation and has stated in his evidence that in the year 1999, Md. Javed was working in the Legal Section of the Corporation as Assistant and had received the summons of T.S.N. 137 of 1999 on 20th of August, 1999 when the office of the Corporation was closed due to strike call given by the Mahasangh of the employees. He has further deposed that entry in regard to the filing of the suit has not been made in the Register of the Corporation.

(8.) The Court below, on appraisal of evidence, came to the conclusion that the defendant was prevented by sufficient cause from appearing in the suit and as such, by the impugned order, set aside the ex parte judgment and decree.

(9.) Mr. Vishnudeo Narain appearing on behalf of the plaintiff-petitioner submits that sine qua non for exercise of the power under Order 9 Rule 13 of the CPC for setting aside the ex parte judgment and decree, is not only that the defendant is not duly served but it has to be further established that he had appeared in the suit. He submits that defendant had not appeared in the suit and admittedly, the summon was duly served on him, hence, jurisdiction under Order 9 Rule

13 of the Code of CPC was not fit to be exercised. In support of the submission, reliance has been placed on a decision of this Court in the case of Nirsan Singh v. Kishuni Singh A.I.R. 1931 Patna 204 and my attention has been drawn to the following passage from the said judgment which reads as follow: Order 5, Civil P.C., lays down the rules and the methods for service of summons upon a

defendant. It may be personal or in any other way provided for in the rules. Under Rule 6 Order

9, when the plaintiff appears and the defendant does not appear when the suit is called on for hearing the court may proceed ex parte only upon proof that the "summons was duly served" and may pass an ex parte decree. Order 9 Rule 13 therefore entitled the defendant to have the ex parte decree set aside if he satisfies the Court that the summons ''was not duly served" upon him. He will also be entitled to have the decree set side if he succeeds in showing that he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing although on the face of it the summons appears to have been served in accordance with the rule laid down in Order 5, ''Fraud" is not specifically mentioned in Rule 13, but the ''sufficient cause" referred to in Rule 13 may be, amongst others, the suppression of the summons by means of fraud so as to prevent the defendant from having any knowledge of the suit against him and thus to enable the plaintiff to obtain an ex parte decree.

(10.) Mr. Prasad, appearing on behalf of the defendant, however, contends that the ex parte decree can be set aside on satisfaction of the either of the conditions enumerated under Order 9 Rule 13 of the Code of Civil Procedure. He submits that as the defendant was prevented by sufficient cause from appearing in the suit when it was called on for hearing, the Court below rightly set aside the ex parte decree.

(11.) Having appreciated the rival submission, I do not have the slightest hesitation in rejecting the submission of Mr. Narain and the authority relied on instead of supporting his contention goes against him. Order 9 Rule 13 of the Code of Civil Procedure, inter alia, confers power on the court to set aside an ex parte decree when it is satisfied that the summon was not duly served or the defendant is prevented by any sufficient cause from appearing when the suit is called on for hearing. In my opinion in a case in which the defendant is prevented by sufficient cause, it is not necessary that he ought to have appeared in the suit earlier so as to entitle him to take recourse to Order 9 Rule 13 of the CPC for setting aside the ex parte decree. In the case of Nirsan Singh (Supra). It has been clearly held that Order 9 Rule 13 of the CPC entitles the defendant to have the ex parte decree set aside if he satisfies the Court that summon was not duly served and shall also be entitled to have the decree set aside, if he succeeds in showing the Court that he was prevented by sufficient cause from appearing when the suit was called on for hearing. The two grounds are separate and distinct and it nowhere provides that defendant can take recourse to the second part of the rule, only when he had appeared in the suit.

(12.) Mr. Narain, then contends that the finding recorded by the Court below that the defendant was prevented by sufficient cause from appearing in the suit, is perverse and calls for interference by this Court in exercise of its revisional jurisdiction. He points out that the best evidence in the case would have been of the Law Clerk who had received the summons, the Administrator of Corporation in whose notice the institution of the suit was not brought and Dinesh Chandra Ghosh the Amin, from whom, the defendant knew about the passing of the ex parte decree. He also points out that the best evidence in the case would have been the Suit Register but the defendant had not produced the same.

(13.) He further submits that the power of the Court to set aside the ex parte decree under Order 9 Rule 13 of the CPC is circumscribed by the grounds mentioned therein and it does not depend upon the whim and fancy of the Court. Reliance has been placed on a decision of the Gauhati High Court in the case of Mangaldoi Tea Co. Ltd. v. Md. Abdul Latif Munshi A.I.R. 1977 Gauhati 51 and my attention has been drawn to the following passage from paragraph No. 6 of the said judgment which reads as follows: 6.-xxx The learned Counsel is absolutely justified in submitting that the power of the court to restore a suit is circumscribed and limited by the express provision contained in Order 9 Rule 13 of the Code. On no ground other than those enumerated in Order 9 Rule 13 of the Code a court can set aside an ex parte decree. For setting aside the decree, the applicant must satisfy the court that (i) the summons was not served or that (ii) he was prevented by any sufficient cause from appearing in court when the suit was called on for hearing. In the present case, the impugned order was passed not on any of the aforesaid ground. Queerly enough the suit was restored to file ''due to the absence of the plaintiff". This is not a ground on which a civil court can set aside an ex parte decree. Accordingly, I am constrained to hold that the impugned order is absolutely without jurisdiction and cannot be sustained.

(14.) Mr. Prasad, however, contends that this Court, in exercise of power under Section 115 of the Code of Civil Procedure, does not appraise the evidence and upsets finding of fact unless it is shown that same is perverse. He points out that the Court finding the case to be covered under second part of Order 9 Rule 13 of the CPC had set aside the ex parte decree, which does not call for interference by this Court in its revisional jurisdiction.

(15.) Having considered the rival submission, I do not have the slightest hesitation in accepting the broad submission of Mr. Narain and in fact not disputed by Mr. Prasad, that power of the court is (Sic) cumscribed by Order 9 Rule 13 of the Code of Civil Procedure and ex parte decree cannot be set aside on whim and fancy of the court. Before an ex parte decree is set aside, the court is to be satisfied that the summon was not duly served on the defendant and in the alternative, he was prevented by sufficient cause from appearing when the suit was called on for hearing. But this in no way advances of the case of the petitioner. The court below, on appraisal of evidence, has come to the conclusion that the defendant was prevented by sufficient cause. For coming to the aforesaid conclusion, he has referred to the evidence of the two witnesses. The Court below had taken note of retirement of Mr. Javed, while appraising evidence. I am of the opinion, that the finding recorded by the court below is on appraisal of evidence, which cannot be said to be perverse calling for interference by this Court in exercise of its revisional jurisdiction.

(16.) As the suit is pending since long, I deem it expedient that the learned Judge, in seisin of the case, make endeavour to dispose of the suit expeditiously.

(17.) In the result, I do not find any merit in the application and it is dismissed accordingly with the observation aforesaid
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