UMAKANT SINGH Vs. BHAGURAM MAHATO

JUDGEMENT

(1.) THIS application is at the instance of the defendant and is directed against the order dated January 29, 2007 passed by the learned Additional District & Sessions Judge, First Fast Track Court, Serampore in Misc. Appeal No.64 of 2004 thereby affirming the order dated April 3, 2004 passed by the learned Civil Judge (Junior Division), First Court, Serampore in Misc. Case No.32 of 2003. The plaintiffs/opposite parties instituted a Title Suit No.36 of 2002 for eviction describing the petitioner as a trespasser in respect of the premises in suit, as described in the schedule of the plaint. A notice to quit was duly sent by registered post with A/D upon the petitioner; but he refused to accept the same. Thereafter, the substituted service was effected but the petitioner did not appear in the suit at all. The suit was decreed ex parte. On getting information about the passing of the ex parte decree, the petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree and that application has been converted into a misc. case bearing no.32 of 2003. I find here that the ex parte decree was passed on September 3, 2002 and the application for setting aside the ex parte decree along with an application under Section 5 of the Limitation Act was filed on September 23, 2003. By the order dated April 3, 2004, the learned Trial Judge dismissed that misc. case. Being aggrieved, the defendant/petitioner preferred the misc. appeal no.64 of 2004 which was also dismissed by the learned Additional District & Sessions Judge, First Fast Track Court, Serampore by the impugned order. Being aggrieved, this application has been preferred. Mr. Chakraborty, learned Advocate appearing on behalf of the petitioner, submits that as per provisions of the C.P.C., the plaintiff was bound to serve notice upon the defendant by two ways simultaneously, one by the process server and another by the postal service. In the instant case, no notice was serviced through the process server. But the notice sent by registered post was caused to be returned at the connivance of the plaintiff and so the notice was not served. Even the notice by way of substituted service has not been properly served upon the defendant. Therefore, no service of notice has been effected at all upon the defendant/petitioner. But the learned Trial Judge as well as the learned Appellate Court failed to consider this aspect. As such, the defendant/petitioner had no knowledge of the institution of the suit. Immediately, on getting information, he took necessary steps for setting aside the ex parte decree and he filed an application under Section 5 of the Limitation Act for condonation of the delay which was also rejected by the impugned order. Therefore, the order impugned cannot be sustained. It must be set aside. The defendant should be given liberty to contest the suit. On the other hand, Mr. Datta, learned Advocate appearing on behalf of the opposite parties, supports the judgment. So, the question that emerges for decision is whether the impugned order can be sustained. Upon hearing the learned Advocate for the parties and on going through the materials on record, I find that the suit for eviction was instituted in the year 2002 and immediately after filing of the suit, the plaintiff took steps for issuance of summons upon the defendant. It is the clear observation of the learned Trial Judge that as per materials on record, the process servers report clearly lays down that the wife and the son of the petitioner were informed about the summons and its contents. But they refused to accept it and so, the summons was hanged on the conspicuous place of the residence of the defendant/petitioner. THIS is the specific evidence on behalf of the plaintiff/opposite party. The postal envelope also bears the remark refused. In order to refute such specific evidence on behalf of the plaintiff, the defendant did not adduce any evidence in support of his application either under Section 5 of the Limitation Act or in support of his contention of sufficient cause for not taking steps properly. In fact, the defendant/petitioner did not adduce any evidence in support of his contention. His application for condonation of delay does not lay down any date when he got information as appearing in paragraph no.4 at the page no.25 of the application. Therefore, the defendant/petitioner is so much callous that he did not mention the date when he got the information that the suit was decreed ex parte. THIS being the position, the learned Trial Judge has observed that the defendant has failed to show sufficient cause for condonation of delay in setting aside the ex parte decree. The learned Appellate Court supported the views on the fact of insufficient cause in the matter of condonation of delay. Thus, I find that both the Courts below have come to a common conclusion that the petitioner has failed to show sufficient cause for condoning the delay in filing the application for setting aside the ex parte decree and such finding is not perverse at all but based on materials on record. THIS being the position, I am of the view that there is nothing to interfere with the impugned order. The impugned order should be sustained. The application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.