Allahabad High Court
Shiv Murat And Another vs State Of U.P. And 12 Others on 5 May, 2014
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved AFR Case :- WRIT - B No. - 17955 of 2014 Petitioner :- Shiv Murat And Anther Respondent :- State Of U.P. And 12 Others Counsel for Petitioner :- Pratap Kanchan Singh, Ajay Bhanot Counsel for Respondent :- C.S.C.,Anuj Kumar, Santosh Srivastava, Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri Ajay Bhanot and Sri Pratap Kanchan Singh, for the petitioners and Sri Santosh Srivastava, for respondents-7a and 7b, caveators.
2. The writ petition has been filed for quashing the order of Board of Revenue U.P. dated 20.02.2014, arising out of suit for declaration of rights under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Act").
3. Shiv Murat (petitioner-1) filed a suit (registered as Suit No. 31 of 1982) for declaring him as co-sharer in the land recorded in khatas 127, 164 and 172 of village Sudinpur, pargana Naraini, district Banda. The land of khata 127 was recorded in the names of Ram Pal sons of Shiv Prasad, Ram Lal and Sadanand sons of Ran Saran and Tirath Prasad son of Anusuiya. The land of khata 164 was recorded in the names of Ram Pal sons of Shiv Prasad. The land of khata 172 was recorded in the names of Ram Pal sons of Shiv Prasad and Ram Lal and Sadanand sons of Ran Saran. The suit was filed on the allegations that Shiv Murat (the plaintiff) and Ram Pal, Shiv Surat and Chandra Shekhar (defendants-3, 4 and 5) were sons of Shiv Prasad and members of joint Hindu family. The plaintiff and defendants-3, 4 and 5 were co-sharers in the land in dispute along with other recorded tenure holders but the name of Ram Pal was alone recorded in it, in representative capacity. It is alleged that summons in the suit were issued to the defendants on 09.07.1982. The process server returned the summons with endorsement on it, dated 27.07.1982 that noticees had refused to take summons and in respect of Tirath Prasad (defendant-8) as "dead" and a copy of summons were pasted on the door of the defendants. Trial Court presumed service of the summons as sufficient. The plaintiff filed an application for substitution of the heirs of Tirath Prasad, stating that his heirs were already on record as remaining defendants. Trial Court thereafter proceeded ex parte in the suit and recorded statements of the witnesses of the plaintiff and by his ex parte judgment dated 04.01.1983 decree the suit and directed for recording the names of the plaintiff and defendants-4 and 5 as co-sharers in the land in dispute.
4. Smt. Rukmani and Smt. Sunaina (respondents-11 and 12) filed an application dated 03.04.1984, for setting aside the ex parte decree dated 04.01.1983. They stated that they were daughters of Tirath Prasad (defendant-8), who executed a registered will dated 28.07.1980 in their favour. After death of Tirath Prasad, they filed an application for mutation of their names before Tahsildar Naraini, which was pending on the date of the decree dated 04.01.1983 and allowed on 07.02.1984. Apart from them, their mother was also alive. The plaintiff deliberately did not show either their mother or them as the heirs of Tirath Prasad in the substitution application and by making a false allegation that heirs of Tirath Prasad were already on record, filed the substitution application and obtained ex parte decree. Trial Court rejected the restoration application by order dated 12.09.1984. They filed revision against the aforesaid order. Additional Commissioner by order dated 12.03.1991 referred the matter to Board of Revenue, U.P. for allowing the revision, which was allowed by Board of Revenue U.P. by judgment dated 08.11.1993. The petitioners filed Writ Petition No. 8286 of 1994 against the aforesaid order before this Court.
5. Thereafter, Ram Pal (respondent-7) also filed an application dated 23.05.2000 for setting aside the ex parte decree dated 04.01.1983. Ram Pal stated that summons of the suit was not served upon him. Notices issued in Writ Petition No. 8286 of 1994 was served upon him, then he filed Counter Affidavit in the writ petition on 04.01.2000. Thereafter he fell ill and after recovery, he got the record of the suit inspected on 22.05.2000, then he came to know about the ex parte decree and then the application for setting aside ex parte decree was filed along with delay condonation application. Petitioner-1 contested the application and has stated that notice issued in the application for setting aside decree filed by Rukmani and notices issued in the revision filed by Rukmani were served upon Ram Pal. One proceedings under Section 145 Cr.P.C. was also initiated in respect of possession over the land in dispute in the year 1985, which was decided on 01.11.1985. Therefore Ram Pal came to know about the decree dated 04.01.1983, in the year 1984 and there is no ground for condonation of inordinate delay. Sub-Divisional Officer, by his order dated 06.06.2003, held that it is unbelievable that Ram Pal had not taken copy of khatauni for such a long time as such delay was not liable to be condoned. On these findings he rejected the restoration application. Ram Pal filed an appeal (registered as Appeal No. 741/188) from the aforesaid order. Additional Commissioner by his order dated 04.02.2006 held that notices issued on 17.11.1998 was refused by Ram Pal as such he had come to know about the ex parte decree dated 04.01.1983 at that time and delay was not liable to be condoned. Ram Pal filed Second Appeal No. 45 of 2005-06 from the aforesaid orders, which was heard by Board of Revenue U.P. who by the impugned order dated 20.02.2014 held that summons of the suit was not served upon Ram Pal. Endorsement of refusal made by process server has been denied by two witnesses by filing their affidavit, which have been illegally ignored by the court below. On these findings the appeal was allowed and orders dated 06.06.2003, 04.02.2006 and decree dated 04.01.1983 were set aside and the matter was remanded for fresh trial of suit and decision on merit. Hence this writ petition has been filed.
6. The counsel for the petitioners submitted that Process Server tendered the summons to Ram Pal who refused to take summons issued by the Court in presence of two witnesses. Thereafter process server pasted one copy of summons on his door and made endorsement in this respect on the duplicate summon. Refusal of the summons raises presumption of service under Section 114 of the Evidence Act, 1872. Presumption under the law has not been rebutted by Ram Pal. Two courts below concurrently held that there was service of the summons on Ram Pal. Board of Revenue has illegally interfered in the findings of fact. He relied upon the judgments of Supreme Court in Parimal Vs. Veena alias Bharti, (2011) 3 SCC 545, in which it has been held that presumption of service of summons raised under Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of General Clauses Act, 1897 is a legal presumption. Burden lies upon the person to prove otherwise. In the absence of any evidence rebutting the presumption, ex parte decree cannot be set aside.
7. I have considered the arguments of the counsel for the parties and examined the record. In this case, summons were not sent through registered post as such the presumption under Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of General Clauses Act, 1897 cannot be raised. The Process Server made endorsement on the duplicate summon that Ram Pal had refused to take summons issued by the Court in presence of two witnesses thereafter one copy of summon was pasted on his door. Ram Pal filed his affidavit and denied service of summons upon him. He also filed affidavits of two witnesses Radhey Shyam and Chhedi Lal, mentioned as witnesses on the summons, before the Trial Court, who stated that in their presence, Process Server never tendered the summons to Ram Pal nor they had signed the duplicate summon. Trail Court and First Appellate Court illegally ignored these affidavits on record. Trial Court held that it is unbelievable that Ram Pal had not taken copy of khatauni for such a long time while First Appellate Court has taken into account the notices issued in the revision filed by Rukmani. In order to decide the application for setting aside decree under Order IX Rule 13 C.P.C. the Court is required to decide as to whether summons of the suit were served or there was any other cause due to which the defendant was prevented to appear before the Court on the date fixed in the suit. Trail Court and First Appellate Court have illegally failed to record any findings in this respect and based their judgment on irrelevant considerations. In such circumstances Board of Revenue has not committed any illegality in setting aside the orders of the Courts below. Supreme Court in G.P. Srivastava Vs. R.K. Raizada, AIR 2000 SC 1221 held that "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, the application for setting aside ex parte decree was liable to be set aside.
In this case, summons were not served upon the defendants. The summons were not sent through post as such presumption of service could not be raised in this case on the basis of endorsement of 'refusal' by Process Server. In the absence of service of summons, ex parte decree has been rightly set aside by Board of Revenue.
8. So far as knowledge of the ex parte decree through summons served in the revision of Rukmani is concerned in this revision also personal service has not been proved. On the basis of endorsement of 'refusal' presumption of service was raised. Section 4 of Evidence Act, 1872 defines "May presume" and "Shall presume". "May presume" means whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved or may call for proof of it. Under Section 114 Illustration (f) of the Evidence Act, 1872 the Court may presume service of notice through registered post. Expression "may presume" is a factual presumption. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. Wherever expression "may presume" has been used in the Act, a discretion has been given to the Court to presume a fact or it may call upon the party to prove the fact by leading evidence. Presumption of service of summon of the defendant is drawn on the basis of report of Process Server. Thus the burden lies upon the plaintiff to prove the report of Process Server was correct. On the denial of service by the defendant, presumption raised under the Act on the basis of expression 'may presume' stood rebutted and burden is shifted upon the plaintiff to prove due service by leading evidence.
9. Earlier there was controversy amongst the High Court in this respect. The controversy was considered by Bench of three Hon'ble Judges of Supreme Court in Puwada Venkateswara Rao v. Chidamana Venkata Ramana, AIR 1976 SC 869, in which it has been held that a question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent-landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced. The Andhra Pradesh High Court had relied upon Meghji Kanji Patel v. Kundanmal Chamanlal AIR 1968 Bom. 387 to hold that the notice was not served. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused". The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An ex parte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect. This judgment was again followed by Supreme Court in A. Rama Rao Vs. Raghunath Patnaik, AIR 2007 SC 3036, when Defendant 1 on oath stated that he did not receive the notice allegedly sent by post, the same would prevail over the postal remarks that it was "refused" unless the postman was examined.
10. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.
Order dated 5.5.2014 Jaideep