Madhya Pradesh High Court
Kaluram vs Smt.Phooleshwari Devi on 9 November, 2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. CR.No.20/2010
Parties Name Kaluram
vs.
Smt Phooleshwari Devi and others.
Date of Judgment /11/17
Bench Constituted Justice Sujoy Paul J.
Judgment delivered by Justice Sujoy Paul
Whether approved for reporting NO
Name of counsels for parties Applicant: Shri Amit Verma, Adv.
Respondent: None
Law laid down -
Significant paragraph numbers -
(ORDER)
(09.11.2017)
This revision filed under section 115 of the CPC is directed against the order dated 24.9.2009 (Annexure P/1) passed by Civil Judge Class-II, Goharganj District Raisen (MP) in MJC No.2/09.
2. The applicant/plaintiff filed a suit in the year 1983 against respondent/defendant No.1 Smt Phooleshwari Devi and her husband Ramkrishna Kushwaha for declaration and permanent injunction. The defendants filed their written statement/ cross suit. On 20.2.1987, Ramkrishna Kushwaha, husband of Smt. Phooleshwari Devi passed away. The stand of the respondents before the court below was that after demise of her husband, she could not keep track from her advocate. On 17.12.1987, issues were framed by the trial court. On 31.07.89, reply of cross-suit was filed by the plaintiff. On 24.3.1995, plaintiff and defendants both were not present and thus due to absence of plaintiff, the suit was dismissed. An
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CR No.20/2010application for restoration of said suit was filed under Order 9 Rule 8 of CPC by the plaintiff which was registered as MJC No.3/95. By order dated 23.04.1997, the suit was restored to its original number.
3. Shri Amit Verma, learned counsel for the applicant submits that the trial court by order dated 28.6.1997 directed the plaintiff to issue notice to the defendant. On 13.11.97, notice was returned with an endorsement of refusal. The court below on 29.11.1997 proceeded ex- parte against the defendants. The case was fixed for evidence of plaintiff on 11.11.97. On 22.12.1997, the suit of applicant/ plaintiff was allowed and his name was directed to be mutated in the revenue record. On 22.1.2008, the respondent No.1 filed an application under Order 9 rule 13 read with section 151 of CPC on various grounds. Shri Verma submits that the grounds raised were : (i) initially she had engaged Advocate Shri Tripathi and filed her written statement and counter claim. Her husband was in touch with said Advocate. However, on 20.2.1987, her husband passed away. Being a woman, she could not contact her Advocate and lost track of the case; (ii) On 28.7.2007, a notice was published in "Dainik Jagran" in which name of Kaluram was mentioned as vendor. The respondent/ defendant No.1 repudiated the same and also issued legal notice through her counsel ; (iii) No reply was received either by Advocate or by defendant No.1. Respondent No.1 stated that she received the reply of notice along with copy of judgment and decree dated 22.12.97. Thereafter, on 3.1.2008 through her Advocate, she filed an application for obtaining certified copy of the judgment. She received the certified copy on 07.01.2008; (iv) She also received information from her Advocate that the said case was fixed on 24.3.1995 for plaintiff's evidence; (v) The plaintiff remained absent and the trial court dismissed the suit. Later on, on 28.10.1997, the trial court directed to issue summons to the defendant by registered post. A registered envelop was sent through court but the same was not served on the defendant
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CR No.20/2010because of mentioning of wrong address on it. On 13.11.1997 envelop was received back in the court with a note "refused to accept".
4. Shri Verma submits that on the strength of the said reasons, respondent No.1 contended that for the said reasons she could not appear on 29.11.1997 and the court below has erroneously proceeded ex-parte against her. She did not receive any notice after restoration of the matter.
5. Shri Verma submits that all the reasons aforesaid shown by respondent No.1 are incorrect because (i) The defendant was under duty to keep contact with her Advocate since 1987; (ii) Her son Pramod Kumar became adult by that time who could have obtained information of the said case from the Advocate; (iii) The judgment and decree was passed in the year 1987 and hence application filed by the defendant No.1 was barred by limitation; (iv) defendants admitted that the plaintiff continuously remained in possession of the suit land. Thereafter, the name of the plaintiff was entered into the revenue record. The concerned Tehsildar never informed her and passed the mutation order in his favour but defendant did not file any objection. It was denied by the present applicant that the registered envelope was sent on the wrong address of the defendant. Great emphasis was laid on the address of the defendant i.e "Quarter No.N-2/77, E-Sector, Barkheda, Bhopal"
6. By taking this court to the said notice, it is urged that the notice/ envelope contains the same address which was furnished by defendant No.1. Hence, findings of the court below is perverse that the relevant notice/ envelope contains the wrong address. Pertinently, the defendant mentioned the same address in her application filed under Order 9 rule 13 CPC.
7. It is further argued that the defendant had not approached the court below with clean hands. She suppressed the facts. The defendant neither appeared in the original suit nor in the Misc. case. In support of
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aforesaid contentions Shri Verma relied on Basant Singh and another Vs. Roman Catholic Mission-AIR 2002 SC 3557, Sunil Poddar and Others Vs. Union Bank of India-AIR 2008 SC 1006, Mahabir Singh Vs. Subhash and others-(2008) 1 SCC-358, Shri Jagat Guru Shankrachariya Vs. Siddhu Engineering Works and others-2010(4) MPHT-334.
8. A plain reading of the impugned order dated 24-09-2009 shows that the Court below has allowed the application preferred by the other side under Order 9 Rule 13 r/w Section 151 of the CPC on the ground that the summon/notice was not duly served on the other side. In Para 10 of the order, the Court below opined that the notices have been issued at the address Quarter No.772 E Sector Barkheda, Bhopal whereas the registered address furnished by the other side was Quarter No.77 E Sector Barkheda, Bhopal. On perusal of the registered envelop, the Court below gave a specific finding that in the address 772/N, no person of the name of defendant resides. Hence, the Postman returned the registered notice to the Court below. Another specific finding is given that as per order sheet dated 29-11-1997, the trial Court proceeded ex-parte against the applicant on the ground that in the envelop, the Postman has made an entry "refused to receive the notice." On careful perusal of the record, the Court below opined that no such envelop is available in the original record. Hence, the basic reason on the strength of which trial Court proceeded ex-parte and ultimately passed the ex-parte judgment and decree, is incorrect.
9. Before dealing with the judgments cited by Shri Amit Verma, learned counsel for the applicant, it is apposite to peruse the original record in relation to the findings given in Para 9 and 10 of the impugned order. The record of trial Court shows that on 28-06-1997, the Court directed for issuance of notice to the applicant. Thereafter, on 20-08- 1997, the Court again directed for issuance of notice by registered post.
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Interestingly, the order sheet dated 13-11-1997 clearly shows that it is not written by the learned Judge. It is written by the Court Master. He gave a finding that the returned envelop contains an endorsement "lene se inkar". The matter was directed to be placed before the Presiding Officer. On the next date i.e. 29-11-1997, the Court below proceeded ex- parte.
10. The stand of the present applicant is that the notices to the other side were issued on the same address, which was furnished by the other side. In addition, the application filed under Order 9 Rule 13 of the CPC also contains the same address. Hence, by no stretch of imagination, it can be said that the notices were not issued to the correct address.
11. To examine the correctness of this aspect and in order to separate the wheat from chaff, it was thought apposite to open the relevant sealed envelop. On perusal of the notice contained in the said envelop, it was clear that the said notice was issued by the Court on 09-07-1997. The address mentioned in this notice is Quarter No.772 E and not 72 E. The next date of hearing as per notice is 20-08-1997. Since the address was wrong, the Postman specifically mentioned that at the said address Phooleshwari/Defendant No.1 is not residing. There is no other notice which shows that the Court below had made any attempt to serve the other side. As per this notice, it is clear that notice was issued on a wrong address. There is no envelop on record which shows that applicant before the Court below had refused to accept the notice. Thus, I find no procedural impropriety or perversity in the impugned order which warrants interference by this Court in the present civil revision.
12. Since in the present case it is crystal clear that the notice was issued on a wrong address and it was never served on the applicant, the judgments cited by Shri Verma which are based on different factual scenario cannot be pressed into service.
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13. As noticed, the Court below has passed a plausible order, which is based on material on record. In absence of establishing any manifest procedural impropriety or palpable perversity, no interference is warranted in the revisional jurisdiction of this Court. Resultantly, the revision fails and is hereby dismissed. No cost.
(Sujoy Paul) Judge MKL/mohsin Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2017.11.15 10:53:26 +05'30'