Gauhati High Court
Smt. Afia Begum @ Asia Khatun And Anr vs Md. Ashkar Ali on 29 January, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/4
GAHC010268552017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 279/2017
1:SMT. AFIA BEGUM @ ASIA KHATUN and ANR.
D/O LATE MEERA HUSSAIN, VILL- DHING, SONARIGAON, MAUJA- DHING,
PS- DHING, DIST. NAGAON, ASSAM, PIN-782123
2: MD. NAZARUL ISLAM @ MD. DANGOR BA
S/O LATE MEERA HUSSAIN
VILL- DHING
SONARIGAON
MAUJA- DHING
PS- DHING
DIST. NAGAON
ASSAM
PIN- 78212
VERSUS
1:MD. ASHKAR ALI
S/O LATE TABIZ SHEIKH @ TABIZ ALI, 7, DHING, SONARIGAON, MOUZA-
DHING, PS- DHING, DIST. NAGAON, ASSAM, PIN-782123
Advocate for the Petitioner : MR.M R Z CHOUDHURY
Advocate for the Respondent : MD. A J ATIA
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
29.01.2019 Heard Mr. H Bhuyan, learned counsel appearing for the petitioners and Mr. AJ Atia, Page No.# 2/4 learned counsel appearing for the sole respondent.
Order dated 22.06.2017 passed in Misc. (J) Case No. 66/2015 arising out of Title Suit No. 73/2012 by the learned Munsiff No. 2, Nagaon is put under challenge in this revision petition.
The present petitioners are the defendant nos. 5 & 6 in Title Suit No. 73/2012 which is preferred by the sole plaintiff/respondent. The suit proceeded ex-parte against them vide orders dated 05.07.2012 and 04.10.2012. The present petitioners came to know about the pendency of the suit in the year 2015 and thereafter they engaged one counsel wherefrom they could come to know on 16.06.2015 about the ex-parte order passed on the aforesaid two dates. Thereafter they preferred an application for setting aside the ex-parte orders along with a delay condonation petition. The said petition was resisted by the plaintiff/respondent filing written objection. In the proceeding which was registered as Misc. (J) Case No. 66/2015 the petitioners adduced evidence of one witness and on the other hand, the plaintiff/respondent also adduced evidence of two process servers of the court.
PW 1, Md. Nazrul Islam is the present petitioner no. 2 in this petition. In his evidence he supported the contention made in the application for setting aside ex-parte order. In the cross examination he deposed that he is known by the name of 'Dangor Baa' and one Kaku Ali is the son of his elder sister. He admitted the fact that the other defendants earlier filed an application for setting aside the ex-parte order passed against them and the suit has been filed against his elder sister and other relatives. Summonses were received by one Kaku Ali, the son of his elder sister. On the other hand, the DW 1 who is the process server of the court in his deposition, deposed that the petitioner no. 1 Afia Begum was served with the summons of the court in Title Suit No. 73/2012 on 29.06.2012. He exhibited the signature of the petitioner no. 1. Similarly, DW 2 is another process server who served the summons on the petitioner no. 2 i.e. the defendant no. 5 in Title Suit No. 73/2012. It is stated that on 18.08.2012 he served a summons upon Nur Islam who received his own summons as well as his brother i.e. the petitioner no. 2. The said act of receipt of summonses was witnessed by one Bhaijan Ali who signed on the summonses. The said witness DW 2 denied the suggestion that Nazrul Islam i.e. the petitioner no. 2 was at Kerala at that time and his brother Nur Islam did not inform him so Page No.# 3/4 at the time of receipt of the summonses. On the basis of the said factual matrix the learned trial court held that the petitioners failed to show any cause that could be termed as "good" or "sufficient" in order to put them back in a position in which had they not defaulted. After arriving the said finding and rejecting the application, the learned court below allowed the present petitioners to cross examine the witnesses of the plaintiff's side on the point of law and disposed of the said petition. Being aggrieved, this revision petition is preferred impugning the order of rejection dated 22.06.2017.
Mr. Bhuyan, learned counsel for the petitioner, submits that the said two petitioners were not at all aware with regard to the pendency of the suit. The petitioner no. 2 stayed at Kerala and only after returning from Kerala in the year 2015, he could come to know about the pendency of the suit. Immediately on receipt of the information about the suit he engaged the counsel with due diligence and could come to know about the order thereby proceeding the suit ex-parte against him. Mr. Bhuyan submits that the grounds shown in the application in order to condone the delay and also to set aside the ex-parte order which the learned court below failed to exercise the required jurisdiction within the ambit and scope of Order IX Rule 7 of the Code of Civil Procedure are sufficient grounds. Mr. Atia, learned counsel for the sole respondent, on the other hand, vehemently objects to the submission of Mr. Bhuyan on the ground that summonses were duly served on Nur Islam, the defendant no. 4 who is the brother of the present petitioner no. 2. On the other hand, the petitioner no. 2 was served with the notice and he personally accepted the same. The learned court below being not satisfied with the contradiction with respect to the name of the petitioner and the person who signed in the summons as "Achia" again directed to take steps by the plaintiff/respondent on the said defendant/petitioner no. 1. This time the summons was received by Kaku Ali, the son of the petitioner no. 1. As such, he submits that as summonses were duly served as required under Order V of the Code of Civil Procedure there is no merit in this petition and prays for dismissal of the petition.
Considered the submissions of the learned counsel for the parties. From the factual matrix and on perusal of the impugned order, it is clear and apparent that summonses on behalf of the petitioners were duly received by the family members who are adult and the same fully satisfies the requirement of Order V Rule 9 of the CPC. There is no material to show before this court that the petitioner no. 2 was at Kerala during the period 2012 till Page No.# 4/4 the date of his knowledge in the year 2015 about the pendency of the suit. Under such circumstances, the petitioner no. 2 failed to discharge the onus in support of his contention that he was at Kerala during the said period. The evidence of the process servers cannot be discarded inasmuch as had the petitioner no. 2 been at Kerala, the defendant no. 4 Nur Islam, the brother of the petitioner no. 2 would definitely inform about the absence of the petitioner no. 2 from his residence. This is not a case wherein the petitioners could be permitted to file their written statement after setting aside the ex-parte order inasmuch as it is an admitted fact that the summonses were received by the adult members of the family of the petitioners and there is no point in disbelieving the documents produced before the trial court by the plaintiff/respondent. Accordingly, I do not find any merit in this application which stands dismissed.
Interim order passed earlier stands vacated.
The parties to the suit shall appear before the learned trial court on 21.02.2019.
JUDGE Comparing Assistant