NAJEEBUNNISA Vs. MOHAMMED MAHBOOB ALI KHAN

JUDGEMENT

(1.) Revision petitioners 1 and 2 filed the suit against the respondent for cancellation of the sale deed bearing No.2780/2000 dated 24-10-2000 executed in favour of the respondent and for other releifs. After the suit was decreed ex parte, respondent filed a petition under Order 9 Rule 13 CPC to set aside the ex parte decree. By the order under revision, the learned trial Judge allowed the said petition. Hence, this revision by the plaintiffs in the trial Court.

(2.) The main contention of the learned Counsel for revision petitioners is that the trial Court without keeping in view the provisions of Order V Rule 20 and Order V Rule 19-A(2) CPC and the ratio in Basant Singh v. Roman Catholic Mission, 2002 (6) ALD 51 (SC) = AIR 2002 SC 3557, erroneously held that there was no proper service of summons on the respondent, because the trial Court failed to keep in view the fact that it ordered service of notice through registered post and since summons were sent by registered post also the Court should have drawn an inference that the summons were duly served on the addressee by virtue of the provisions contained in Order V Rule 19-A(2) CPC read with Section 27 of the General Clauses Act. It is his contention that since the revision petitioners did not seek publication of the notice in the news-paper 'Pledge' and it is the Court that ordered publication of notice in the newspaper 'Pledge', the trial Court erred in observing that inasmuch as the publication was made in the newspaper 'Pledge' which does not have wide circulation, it cannot be said to be a due service and contended that the consequences for the act done by the Court cannot be visited on the revision petitioners who filed a petition for service of notice through publication in a paper, without naming the paper in which the publication has to be made and contended that inasmuch as the respondent, who took a plea that the revision petitioners managed the Bailiff to get a false endorsement of return being made, failed to adduce evidence in support of that contention and in any event since it is the Process Server but not a Bailiff that was entrusted with the task of serving summons and since there is no evidence on record to show that the revision petitioners 'managed' the Bailiff or the Process Server to get a false endorsement of return made on the summons, the trial Court was in error in observing that the summons were not duly served on the respondent. It is his contention that since CPC prescribes paper publication as one of the modes of service of summons, when paper publication is made, it should be deemed that there is valid service of summons and since the petition is not filed within 30 days from the date of the ex parte decree, the trial Court ought to have held that the petition is barred by time and contended that since the revision petitioners subsequent to the passing of the decree, had, after obtaining delivery of possession of the property, inducted third parties into possession of the suit property they would face problems from the persons whom they had inducted into possession and so the order under revision is liable to be set aside.

(3.) The contention of the learned Counsel for respondent is that though the proceeding sheet of the trial Court shows that summons were ordered only once, in his affidavit filed in support of the petition filed under Order V Rule 20 CPC, sworn to by the Counsel for revision petitioners in the trial Court, the Counsel for the revision petitioners alleged that though summons were ordered several times they were not served on the respondent and so notice may be ordered through publication, and that fact itself shows that respondent played fraud on the Court and since the evidence of R.W.2, the Process Server, clearly establishes that he did not take steps for proper service of summons on the respondent the trial Court rightly held that there was no proper service of summons on the respondent and contended that though the respondent and his wife were living in the same address, the revision petitioners by playing fraud on the Court, and by managing the Process Server obtained a false return on the summons and since notice by publication in a news paper which has no wide circulation, is not proper service and since the respondent immediately after coming to know about the ex parte decree filed the petition, it cannot be said that the petition is barred by time.