HITESH KUMAR OJHA Vs. KRUSHNA CHANDRA MAHAPATRA

JUDGEMENT

(1.) The appellants call in question the correctness of the order passed by the learned Subordinate Judge, First Court, Cuttack rejecting a petition filed under O. 9, R. 13 of the Code of Civil Procedure, 1908 (in short the 'Code'), praying to set aside an ex parte decree passed in T. S. No. 308 of 1984.

(2.) The background facts are that the respondent as plaintiff filed the aforesaid suit for a specific performance of contract. According to the appellants summons were suppressed and consequently, they had no knowledge about the filing of the suit and the suit was decided ex parte. The appellants filed a petition under O. 9, R. 13 of the Code for setting aside the ex parte decree and for hearing the suit on merits. The same has been dismissed, on the ground that service of summons has been duly proved and therefore, the appellants having not appeared in spite of valid service of summons, there was nothing illicit in the ex parte decree. In the present appeal, it has been asserted that there was no service of summons, and in any event summons having not been issued through registered post though mandated by O. 5, R. 19A of the Code, the proceeding was vitiated and therefore, refusal to restore the suit is improper. The respondent, however, countered the assertions by submitting that the service of summons has been duly proved and merely because summons were not sent by registered post, it cannot be held that there was any infirmity.

(3.) For resolution of the dispute, reference to certain factual aspects is necessary in addition to the consideration of the scope and ambit of O. 5, R. 19A of the Code. The suit was filed on 18-8-1984. On 18-9-1984 the plaint was admitted and order was passed by the learned Subordinate Judge to issue summons both ways i.e. through Court and by registered post fixing 6-11-1984 for settlement of issues. On 6-11-1984 order was passed to the effect that service return was indicating affixture of summons on refusal of the defendants as per report of the Process Server. The defendants were set ex parte and the matter was posted to 19-1-1985 for ex parte hearing. On 19-1-1985 the matter was heard ex parte and was posted to 28-1-1985 for ex parte judgment. The suit was decreed ex parte against the defendants. The application under O. 9, R. 13 of the Code was filed on 11-2-1985, which has been rejected as aforesaid. The stand of the petitioners was not refusal as stated and in fact, appellant No. 1 was staying at Delhi at the relevant time and could not have refused to receive the summons. Further, it was stated that appellant No. 2 is a purdanasin lady. The Process Server was examined who has stated that he had gone to the house of the appellants and tendered summons to the appellants, who were identified by the present respondent. As they refused to accept the summons there was service by affixture. The learned Subordinate Judge has disbelieved the plea of non-receipt, primarily on the ground that the appellants were not themselves examined and their power of attorney holder was examined. The learned Subordinate Jude also placed reliance on the deposition of respondent No. 2 in a house rent control proceeding, where she has stated that after receiving summons she came to know about the suit in the Court of Subordinate Judge, Cuttack. I shall deal with the factual controversy first. Even if it is held that appellant No. 2 had knowledge about the suit, yet there is no material to show that appellant No. 1 had refused to receive the summons. On the contrary, from Ext. 3, the registered postal cover relating to Advocate's notice sent by the respondent to the appellant No. 1, it transpires that the letter was addressed to the local address of appellant No. 1, but was redirected to Delhi address in the month of April, 1984. Of course the fact that appellant No. 1 was at Delhi in April, 1984 does not necessarily rule out the possibility of appellant No. 1 being at Cuttack in August, 1984. However, this is a factor which prima facie shows that appellant No. 1 was normally staying at Delhi. Further, the statement of the appellant No. 2 in the House Rent Control proceeding is ambiguous. It is the specific case of the respondent that she refused to receive summons issued through Court. But the statement of appellant No. 2 is to the effect that she knew about the suit after receiving the summons. This apparent confusion has not been noticed by the Court below. Added to it, I find that summons were not issued by registered post, though specifically ordered by the learned Subordinate Judge.