HUSSAIN BANO Vs. NAZIR JAN

JUDGEMENT

(1.) Shri Nazir Jan filed a suit against his brother and sister seeking partition of house No. 1509, Ward No. X, Suiwalan Delhi. Defendant No. 2 in the Suit was Mst. Hussain Bano. The suit was decreed on 17.8.1981 by which the share of the plaintiff was declared to be 135/288th while the share of defendant No. 2 was declared to bel3/288th. The decree against defendant No. 2 was ex-parte as she did not appear despite service. Defendant No. 2 thereafter filed an application under Order 9. Rule 13 CPC for setting aside the ex-parte decree passed on 17.8.1981. The application of defendant No. 2 was dismissed by order dated 27.4.1983. Defendant No. 2 has filed the present appeal against the order dated 27.4.1983 which is under disposal. Defendant No. 2, appellant herein, stated in the application under Order 9, Rule 13 CPC, that the appellant was a pardanashin lady and no summons was ever served on the appellant from the court by any mode or process. The appellant never refused to receive any summons nor any service was effected by affixation or pasting the summons at the site. She had no knowledge of the suit or passing of the decree prior to 1.11.1981. The appellant, who is the sister of the respondents, was not on talking terms with them since the time of the death of her father. On 1.11.1981 while looking through the old papers it was revealed that her father Agha Jan had made a WILL of his share in the house in dispute. Since the appellant was not educated, so she gave the document to her husband who is also uneducated, for getting them read from somebody else. Her son Noor Mohd. informed the appellant that her father had made a WILL of his share of the property in favour of Rafiq Jan, brother of the appellant. The appellant immediately contacted Rafiq Jan and informed him about the existence of the WILL in his favour. Rafiq Jan told the appellant that decree had already been passed by the court and she was further informed that the appellant was one of the defendants in the Suit. It is further stated in the application that neither the plaintiffs nor the defendants had any knowledge of the existence of the WILL prior to 1.11.1981. No summons of the suit were duly served on the applicant nor she had any knowledge of the suit and the ex-parte decree passed against her was not in accordance with law. It was prayed that the ex-parte decree dated 17.8.1981 against the appellant be set aside. The application was contested on behalf of the plaintiffs/respondents 1 & 2. In the reply filed on their behalf it was stated that the decree was a compromise decree by which the plaintiffs bad been granted 135/288th share in the house in dispute. Agha Jan, father of the plaintiffs and defendants died about 17/18 years ago. As per case of the appellant, the WILL executed by Agha Jan was in favour of Rafiq Jan and as such she could not claim any share in the property. The application for setting aside the ex-parte decree had been filed at the instance of Rafiq Jan. On merits it was further stated that she was not a Pardanashin lady and she was legally served with summons issued by the court. She had the knowledge of the decree. The story of the alleged WILL is a concoction and the application has been filed in collusion and at the instance of Rafiq Jan.

(2.) The parties were given opportunity to lead evidence. The appellant stepped into the witness box and deposed that in the month of November, on 1st or 2nd, she learnt about the case pending in the court for the first time. She was a Pardanashin lady. She had no knowledge about the case before that and she found a paper on 1.11.1981 and showed it to her son who informed her that her father had executed a WILL in favour of her brother Rafiq Jan, then she handed over the WILL to her brother Rafiq Jan who told her that the case had been decided, by the court. Thereafter the application was moved. She stated that she was on visiting terms with her sisters. She denied the suggestion that on 28.9.1979 the process server had come to her. She further stated that she never refused to accept the summons. She also denied the suggestion that the summons were pasted on the door of her house. She also denied the suggestion that she forbade her sisters Noor Bano and Shamin Bano to receive the summons. She further deposed that under the WILL she was not supposed to have any share. She also denied the suggestion that the WILL had been fabricated at the instance of her brother Rafiq Jan. No other evidence was produced by the appellant. On behalf of the contesting respondents, Nazir Jan stepped into the witness box and deposed that he had four sisters. All (he four sisters were his step sisters. Before the institution of the suit he had gone to his sisters Hasin Bano, Kaniz Bano, Noor Bano and Shamim Bano. He also served them a notice that he wanted to file a suit for partition and any of them could challenge. He further deposed that he got the summons issued through court against all the sisters and got the summons served through process-server. Hussain Bano refused to accept the service and the process server affixed the summons at the door of her house. He accompanied the process-server for service on the other sisters also who had accepted the summons. Hussain Bano did not accept the service on the ground that there was dispute between the brothers and she did not want to interfere. In the corssexamination, he deposed that he had not met the process-server earlier and he did not get the summons marked to Bansi Lal process-server. He stood outside the house and pointed out Hussain Bano's house to the process-server. There- after he went to get the summons served on Noor Bano. The other witness who was examined on behalf of the plaintiffs, was Bansi Lal, process-server. He deposed that he was given four summons for service. He had gone alone to serve the summons and the plaintiff No. 1 met him on the spot. He further deposed that he served the summons on Noor Bano, Shamim Bano and Rafiq refused to accept the summons. The house was identified by the plaintiff. He went upstairs and Hussain Bano had met him. Hussain Bano enquired from him as to what for the summons had been brought. He read out the summons and she refused to accept the summons and thereafter he affixed the copy of the summons on the door of the house. No other witness was available at the spot at that time. He proved his report on the summons. In the cross-examination, he deposed that the plaintiff was standing on the ground floor at a distance and he had gone upstairs. There was none to identify Hussain Bano. He had never met Hussain Bano before. At that time Hussain Bano did not keep parda. It was not possible to say as to which of the summons was served first. All the reports were written by him on the spot. He denied the suggestion that he made a false report at the instance of Nazir Jan, plaintiff. He further denied that he had never gone at the spot. The other witness examined on behalf of the contesting respondent was Smt. Noor Bano. In her statement she deposed that Hussain Bano was her sister. Before instituting the suit the plaintiff came to her and told her that he wanted to file the partition suit. She had been meeting at the house of younger sister Sharnim Bano. She had met Hussain Bano at the house of Shamirn Bano. Hussain Bano told her not to accept the service. But she had accepted the summons. In the cross-examination, she stated that she had received the notice. Hussain Bano and Rafiq Jan were not on speaking terms since long but during the pendency of the suit they started talking with each other. At the time when notice was received, they were on talking terms. She was not on talking terms with Hussain Bano from the day she received the notice. She denied the suggestion that no talks as alleged by her had taken place.

(3.) The learned Additional District Judge after appreciating the evidence came to the conclusion that the notice was duly served on her and dismissed the application.