TULSI DAS SINGHA Vs. SMT. JUTHIKA RANI SARKAR

JUDGEMENT

(1.) . - The case of the plaintiff/petitioner herein is that in spite of service of notice of summons nobody appeared on behalf of the defendants/respondents. As a result whereof, an ejectment decree was passed as against the defendants/respondents herein. Such ex parte decree was challenged but the Court of first instance was pleased to disbelieve the facts and circumstances of non-service of notice of summons and came to a conclusion that after receipt of summons the defendants/respondents wilfully abstained from entering appearance in the suit. Therefore, the suit was rightly decreed. Challenging such order, an appeal was preferred before the first appellate Court but in coming to a conclusion, it is found that such order of the Court of first instance was set aside on the grounds as follows :

(2.) Further challenging such order, Mr. S.P. Roychowdhury, learned senior counsel appearing for the plaintiff/petitioner contended before this Court that when the law is specific there is no scope of any inherent power to apply. He cited a judgment reported in 1959 Cal. 389 (Tulsiram Bhagwandas Vs. Sitaram Srigopal) under head note "c" and also a judgment reported in AIR 1964 Supreme Court 993 (Arjun Singh Vs. Mohindra Kumar & Ors.) under head note "d" wherein from the first judgment 1 find that a Division Bench of this Court held that the essence of the Code of Civil Procedure is to be exhaustive so far as it goes and as respects matters for which the Code expressly provides, there is no room for the exercise of any additional jurisdiction under Sec. 151 C.P.C. Similarly, in the second judgment it was held that the inherent power of the Court cannot override the express provisions of the law. In both the cases, the considerations before the Courts were in respect of the provisions under Order 9 Rule 9 as well as Order 9 Rule 13 of the Civil Procedure Code.

(3.) He further submitted by citing a judgment reported in AIR 1987 Supreme Court 2179 (Vinod Kumar Arora Vs. Smt. Surjit Kaur) under head note, "A" that inherent defeacts, if any, in passing an order by the Court below can be cured by the High Court in the application under Sec. 115 of the Civil Procedure Code. The entire order of the appellate Court as indicated above is based on conjuncture and surmises. He further stated that the tenants are in common .No where it has been contended that they are living separately. On the other hand, it appears that the defendants/respondents are residing in the same premises. The received copy of the notice of summons says that it was received by him and for the others. Therefore, there is no scope to consider any other materials other than the scope and ambit of the Order 9 Rule 13 of the Civil Procedure Code. As per Order 5 Rule 15 of the Civil Procedure Code, where in any suit, the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of him being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.