ANANDAMOYEE DEVI Vs. RABINDRA PRASAD SINHA AND OTHERS

JUDGEMENT

(1.) The present Rule was issued at the instance of the petitioner-plaintiff challenging the order dated Aug. 26, 1986 passed by the learned Additional District Judge, Alipore in Miscellaneous Appeal No. 712 of 1985 reversing the order No. 111 dated July 8, 1985 passed by the learned Munsif, 4th Court at Sealdah in Miscellaneous case No. 71 of 1977.

(2.) The learned Munsif rejected the application under order 9, rule 13 of the Code of Civil Procedure filed by the defendant upholding Inter alia that no sufficient cause was shown and the explanation was not satisfactory and consequently the prayer for setting aside, the exparte decree by the defendant was rejected. Feeling aggrieved the defendant filed a Miscellaneous Appeal No. 712 of 1985 and the learned Additional District Judge has allowed the Miscellaneous Appeal finding that the previous summons were not satisfactorily served and sufficient reasons have beer, assigned by the defendant appellant as regards non service of summons and the ex-parte decree ought not to have been passed by the learned Munsif. However, the order of the learned Munsif was set aside and the Miscellaneous Appeal was admitted. Against the said decision the plaintiff has come in revision and obtained the Rule. Mr. Ray Chowdhury, learned Advocate appearing for the plaintiff-petitioner has strenuously argued that the learned Additional District Judge has irregularly exercised jurisdiction in setting aside the order of the learned Munsif. He has mainly argued that it will transpire from the materials on record and in particular from the order sheets that the previous service of summons as not being properly effected the learned Munsif asked for verification of the same. After verification of the process servers report was accepted by the learned Munsif and thereafter there is nothing irregular in passing the ex-parte decree and the defendant ought not to have been given the indulgence to pray for setting aside the ex-parte decree. The learned Additional District Judge has not applied his mind to the order sheet of the court below and in view of the materials on record the learned Additional District Judge ought to have round that no ground has been satisfactorily shown by the defendant to pray for setting aside the ex-parte decree. He has further submitted that in view of the amended provision of Order 9, Rule 13 of the Code of Civil Procedure the learned Additional District Judge should have appreciated that the second proviso to order 9 Rule 13 of the amended Code of Civil Procedure indicates inter alia that no court shall set aside the decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the Plaintiff's claim. In the background of the present cause the learned Court belong ought to have considered the simultaneous service and if the spirit of Order 9, Rule 9 and Order 9, Rule 13 of the Code of Civil Procedure. He has relied upon a case reported in the matter of Manick Chandra Nandy Vs. Debdas Nandy and others, AIR 1986 SC 446. particularly paragraph No. 10. Mr. Ghoshal, Gained Advocate for the opposite parties supporting the judgment of the learned Additional District Judge has submitted that the learned Additional District Judge has considered the materials on record and it is essentially a finding of fact and this court may not interfere with the decision of the learned Court below as there is no irregular exercise of jurisdiction.

(3.) Having heard the learned Advocates of the respective parties as indicated above and after perusal of the materials on record, this Court finds that the learned Munsif refused to set aside the ex-parte decree on reading of the materials on record. The learned Additional District Judge has considered all the facts. Since the learned Additional District Judge's court is a final court of facts, the findings made by him is neither perverse nor his appreciation of the case is beyond the materials on record. Considering all the aspects of the case the learned Additional District Judge thought it and proper to allow the defendant to contest the suit on merits by setting aside the ex-parte decree. The causes shown have been elaborately construed and the learned District Judge has accepted the same, do not find that there is any irregularity in the exercise of Jurisdiction or that the decision of the learned Additional District Judge is otherwise irregular and defective. Considering all the materials on record, this Court is not inclined to interfere with the matter. The Rule is discharged. All interim orders are vacated.