RABINDRA NATH SETH Vs. SURESH CHANDRA DAS

JUDGEMENT

(1.) IT appears from the impugned order that the learned munsif allowed the application under Order 9 Rule 13 of the Code of Civil Procedure on the ground that although the plaintiff-petitioner had sent service of summons to the defendant at 87, Kazi Nazrul Islam road, since the petitioner did not amend the cause title of the plaint that order allowing the petitioner to serve summons upon the defendant at 87, Kazi Nazrul Islam Road, was an irregular order. It, however, appear from the order-sheet that the summons that was sent to the defendant at the place as given by the plaintiff in the plaint was returned unserved with the peon's endorsement dead. The plaintiff-petitioner made an application on 11th March, 1983 wherein he stated, inter alia, that the defendant was delving the suit by avoiding service and he was residing at 87 kazi Nazrul Islam Road leaving the suit premises and prayed for service of summons upon the defendant at 87, Kazi Nazrul islam Road and the court by its Order No. 6 dated Nth March, 1983, allowed the said prayer summons was sent to the said address of the defendant at 87, Kazi Nazrul islam Road and it was returned unserved with the peon's endoresement 'refused' which was accepted by the court below as good service. An ex-parte decree was passed on 26th May, 1983. Lon thereafter, on 21st december, 1983 an application was made under Order 9 rule 13 of the code wherein it was merely stated by the defendant opposite party, that he was not aware of the title suit and summons was not served and was fraudelently suppressed. He came to know of the said suit only in December, 1983 and, thereafter, on search, came to know of the said ex-parte decree.

(2.) THE learned munsif by his impugned order allowed the said application under Order 9 Rule 13 of the Code of Civil Procedure inter alia upon a finding that the plaintiff, without amending the address of the defendant as ordered by the court that the plaintiff was to take steps, prayed for service of summons at the changed and/or new address of the defendant which prayer was allowed by the court and as such the said order was an irregular one. Being aggrieved by the said order of the learned munsif, the plaintiff-petitioner has obtained the present Civil rule in this Hon'ble Court.

(3.) MISS Chowdhury learned Advocate for the petitioner submits since the service of summons at the new and/or other and/or changed address of the defendant was proved by the postal peon, who was examined as a witness in the proceeding, and since the court below had allowed the plaintiff-petitioner's prayer for service of summons upon the defendant at the other and/or changed and/or new address, the learned munsif was wrong in allowing the application under Order 9 Rule 13 of the Code of Civil Procedure upon a finding that an irregular order was passed by his precedessor-in-office while allowing the said prayer of the plaintiff-petitioner and as such, the impugned order suffers from material irregularity and should be set aside.