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Gauhati High Court

Biswanath Ojha & 6 Ors vs Rajib Shah on 11 June, 2015

Author: Hrishikesh Roy

Bench: Hrishikesh Roy

                        IN THE GAUHATI HIGH COURT
 (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)


                       Civil Revision Petition No. 418/2010

   1.   Sri Biswanath Ojha,
        S/o. Late Dewnandan Ojha.
   2.   Sri Rajib Ojha
   3.   Sri Sameer Ojha,
        Both sons of Sri Biswanath Ojha,
        All are residents of "Khadims", G.N.B. Road,
        P.O. & District - Tinsukia (Assam).
  4.    Smti. Mala Upadhaya,
        W/o. Sri Bijoy Krishna Upadhaya,
        Resident of RMS colony, Kankarbargh, Patna, Bihar.
  5.    Smti. Rashmi Upadhaya,
        W/o. Sri Prasant Upadhaya,
        C/o. Bank of Baroda, Kunda Branch,
        Pratap Garh, Uttar Pradesh.
  6.    Smti. Manjari Upadhaya,
        W/o. Sri Kaushal Upadhaya,
        Residents of Line Bazar, Near Hospital Road,
        Purnia, Patna, Bihar.
  7.    Smti. Suravi Upadhaya,
        W/o. Sri Devesh Mishra,
        C/o. Mishra & Associates, Ranisati Marg,
        Chamber Road, Tinsukia.                                - Petitioners.


                        -VERSUS-

  1.    Sri Rajib Shah,
        Son of Late Basudev Prasad Shah,
        Resident of Durgabari,
        P.O. & Dist.: Tinsukia, Assam.                 - Opposite Party.


                                BEFORE
                   HON'BLE MR JUSTICE HRISHIKESH ROY

For the Petitioners:                           Mr. AK Gupta, Advocate.

For the Opposite Party:                        Mr. S. Murarka, Advocate.

Date of hearing & judgment:                    11.06.2015.

                        JUDGEMENT AND ORDER (ORAL)

Heard Mr. AK Gupta, the learned counsel appearing for the petitioners whose predecessor Smti. Meena Ojha was the defendant/tenant, in the Title Suit No.25/2002. Also heard Mr. S. Murarka, the learned counsel appearing for the respondent/plaintiff.

2. The respondent filed the suit for ejectment and arrear rent in respect of the shop room at the Old Fish Market Road, Daily Bazar, Tinsukia and the learned Civil Judge (Jr. Division) No.1, Tinsukia on 24.7.2002 noted that the registered notice send to the defendant was refused and the service of summon was made on the defendant by hanging the notice at her residence. Accordingly on 12.8.2002, the Court directed the case to proceed ex-parte and eventually on 23.9.2002, the decree of ejectment on the ground of rent default since January, 1982 was granted by the Trial Court.

3. The aggrieved defendant at the stage of execution of the decree, filed the application under Order 9, Rule 13 of the C.P.C. on 11.12.2002 (Annexure-V), where she contended that she was in the dark about the ejectment suit as she did not receive any summon from the Court. Accordingly prayer was made for setting aside the ex-parte decree and to allow the defendant to contest the Title Suit No.25/2002.

4. For the purpose of considering the Misc. (J) Case No.15/2003, registered on the defendant's application, the learned Trial Judge examined the Court's process server Naren Kalita and also the Postal Peon Indra Kanta Kachari who were entrusted to serve notice on the defendant. The Court found that the process server served the notice by affixing the same in the defendant's residence and this was witnessed by two witnesses namely Tarun Bhattacharya and S.K. Ray. But as the notice was reportedly hung up on 9.8.2002 and the witnesses signed the said notice giving the signature date as 10.8.2002, the Court observed the discrepancy on the dates and accordingly concluded that the Court's summons (Exhbt.'C') may not have been served on the defendant, through due process.

5. Then the Postal Peon Indra Kanta Kachari was examined who deposed that when he tendered the registered letter, the defendant/addressee refused to accept the registered letter and therefore the Postal Peon made the endorsement "refused" on the envelope. The required endorsement and the registered article was recorded as Exhbt.'A' and considering the bonafide of the witness, the Court concluded that the postal notice was refused by the defendant on 21.6.2002 and as such it was held that the summon was properly served in the Title Suit No.25/2002, upon the defendant. Therefore the Court declined to set aside the ex-parte decree through its order dated 10.11.2009 (Annexure-VII), whereby the Misc. (J) Case No.15/2003 of the defendant was dismissed.

6. The matter was taken to the Appellate Court by the legal heirs of the defendant through the Misc. Appeal No.13/2009 and the learned Civil Judge at Tinsukia after noting the evidence in the case and the provisions of Order 5, Rule 9 of the C.P.C. held that the Trial Court made no mistake in dismissing the defendant's application as she failed to appear and contest the suit by refusing the Court notice when it was tendered to her. On this basis, the defendants' Appeal was dismissed on 29.9.2010, leading to the present revision by the defendants.

7.1. Mr. AK Gupta, learned counsel submits that the initial ex-parte decree was passed by the Court on the ground that notice by hanging was duly served but in the Misc. (J) Case No.15/2003, the same Court observed that this process was irregular because of the discrepancies in the signature dates of the process server and the two witnesses. Therefore it is argued that the Appellate Court should have favourably considered the defendant's application, filed under Order 9, Rule 13 of the C.P.C.

7.2. The petitioners claim that the defendants were unaware of the ejectment suit and to establish the point, Mr. Gupta refers to the petition No.2104/02, filed by the defendant on 4.12.2002 to seek information on whether any suit in respect of the tenanted shop was pending in the Court whereafter, the defendant/applicant was informed on 9.12.2002 (Annexure-IV) about the pendency of the execution proceeding. Since the defendant immediately applied for cancellation of the ex-parte decree after learning of the execution case, Mr. Gupta argues that an opportunity should have been given by the Court to the defendant, to contest the ejectment suit on merit.

7.3. The petitioners cite Sangram Singh vs. Election Tribunal, Kotah reported in AIR 1955 SC 425, to submit that the defendant should not be ejected on the basis of an ex-parte proceeding and the Court should have been flexible enough to facilitate justice to the defendant.

8.1. On the other hand, Mr. S. Murarka, learned counsel for the D.H. submits that the defendant's application under Order 9, Rule 13 of the C.P.C. was rightly rejected by the Court as she failed to establish that she was unaware of the ejectment suit, since she refused to accept the postal notice tendered to her. 8.2. As regards the alternate mode of service of summons made by the Process Server, Mr. Murarka refers to the second proviso to Order 9, Rule 13 of the C.P.C. to contend that mere irregularity in service of summon can't be the CRP No.418/2010 Page 3 of 5 basis for setting aside an ex-parte decree, provided the Court is satisfied that the defendant had notice of the proceeding.

8.3. The respondent claim that the defendant was very much aware of the ejectment suit and the counsel tries to demonstrate this by projecting that the defendant was depositing the rent in Court for 20 years since 1982 and yet all of a sudden, she decided to apply on 4.12.2012 to learn about any pending proceeding in respect of the tenanted premises. After filing this information seeking application and purportedly learning through this application about the execution proceeding, the defendant applied under Order 9, Rule 13 of the C.P.C. The respondent argue that the defendant must have a valid reason to wake up after 20 years to apply for information and this itself indicates that she was aware of the ejectment suit but to camouflage the knowledge she applied for information from the Court.

8.4. Referring to the evidence of the Postal Peon Indra Kanta Kachari (DW.1), Mr. Murarka submits that the evidence of the postal employee clearly showed that the defendant refused the registered letter when the peon tendered the same to her on 21.6.2002 and since the evidence of DW.1 could not be shaken by the other side, it is argued that the Court rightly disallowed the defendant's application for setting aside the ex-parte decree.

9. In judicial proceedings, the endeavor of the Court is to determine the truth after weighing the evidence upon considering the contention of the rival parties. For this, summons/ notices are issued by the Court to facilitate the other side to appear and only when deliberate absence is noticed, ex-parte proceeding is drawn up against that party.

10. In the present case, the learned Trial Judge on 24.7.2002 itself recorded that the registered letter was refused by the defendant and summon was served by the Process Server through alternate mode by hanging the notice. While the Court took a different view on the service of summons through alternate mode in the Misc. (J) Case No.15/2003, a consistent view was taken at all stage about refusal of the postal notice by the defendant when it was tendered to her by the postal employee on 21.6.2002. Therefore the mere irregularity in the alternate mode of service can't be a ground to allow the application under Order 9, Rule 13 of the C.P.C. particularly because the defendant in this case certainly had notice about the pendency of the ejectment suit, as she refused the postal notice tendered to her. Therefore the 2nd proviso to Order 9, Rule 13 of the C.P.C. will CRP No.418/2010 Page 4 of 5 apply in this case and on this count the approach of the two Courts can't be faulted.

11. In so far as the ratio of Sangram Singh (Supra) cited by the petitioners, there can be no quarrel with the proposition that decision should not be taken behind anyone's back and the normal approach of the Court should be to decide the matter after hearing the parties. But when the defendant refused to accept notice, the law does not envisage such elasticity of interpretation to permit errant litigant to complain about denial of opportunity of hearing. Therefore I feel that in the facts of this case, the ratio of Sangram Singh (Supra) is inapplicable.

12. The application for information filed by the defendant on 4.12.2002 is suspiciously close to the ex-parte decree passed against her on 23.9.2002, particularly in the context of the fact that the defendant is depositing the rent in Court for 20 years since 1982. Therefore I am inclined to agree with the contention of the respondent that the application for information was filed only for the purpose of the defendant's application of 11.12.2002 (Annexure-V), as there is no explanation otherwise for the defendant to suddenly apply for information. This application suggests that the defendant was aware of the ejectment suit as she refused the notice tendered to her.

13. In view of the above facts and circumstances, I hold that the approach of both Courts are consistent with the legal procedure and no infirmity is found in the decision given by the Courts, by rejecting the defendant's application under Order 9, Rule 13 of the C.P.C. Accordingly this Revision Petition is dismissed as one without merit, by leaving the parties to bear their respective costs.

14. The Registry is accordingly directed to return the L.C.R. with a copy of this order.

JUDGE Barman.