BISHNU CHARAN MALLA Vs. SANKARSAN MOHAPATRA ALIAS BEHERA

JUDGEMENT

(1.) This revision application is filed by defendant No. 12 in Title Suit No. 59 of 1978 pending before the Civil Judge (S.D.) Kendrapara challenging the order passed by the Addl. District Judge, Kendrapara dismissing his Title Appeal No. 38 of 1992 and confirming the order of the trial Court rejecting the petition fiied under Order 9, Rule 13 of the Civil Procedure Code (for short the 'C.P.C.') for setting-aside the ex parte order passed against him.

(2.) The case of the petitioner is that opposite party No. 1 as the plaintiff filed Title Suit No 59 of 1978 for partition alongwith a prayer to declare that the plaintiff and his adoptive mother defendant No. 2 are not bound by the sale deeds dated 23-9-1974, 8-8-1977 and 4-7-978 executed by Agani, i.e., the adoptive father of the present opposite party No. 1. Further case of the petitioner is that the petitioner himself and his brothers have purchased Ac 0.58 decimals of land by a registered sale deed dated 8-8-1977. According to him, the trial Court in an ex parte decree dated 22-11- 1986 held that so far as 'Ga' schedule properties are concerned, the properties which are purchased by defendant Nos. 12 to 17 under different 'Kabalas' will be valid for l/3rd share of deceased Agani and in respect of 2/3rd share of plaintiff and defendant No. 2, the said Kabalas will not be binding. According to the learned counsel for the petitioner, the petitioner had never received the notice in the suit and postal summons with A.D., which was accepted by his brother, was treated to be sufficient and the trial Court proceeded with the suit in absence of the petitioner. The ground taken before the trial Court in support of the application under Order 9, Rule 13, C.P.C. was disbelieved by the trial Court. The trial Court came to the conclusion that the plea of the present petitioner, i.e., Bishnu Ch. Malla, that since 1959 he was staying at Calcutta with his family and was occasionally coming to his village, and he had no knowledge regarding institution of the suit, and though his other brothers were parties to the suit, they did not inform him regarding the suit as he was separated from his brothers, was not acceptable. The trial Court also found from the evidence of opposite party No. 1 as well as opposite parties 12 and 13, who are contesting opposite parties in the Misc. Case, to the effect that though the petitioner was serving at Calcutta, he used to come to his village very often because his family members were staying in his village when suit was instituted. The order-sheet of the trial Court dated 12-9-1978 indicates that the plaintiff filed a petition supported by an affidavit praying for issuance of summons to defendants 12 and 14 under Order 5, Rule 20, C.P.C. but the trial Court on looking into the fact that postal A.D. of summons returned back from defendant Nos. 12 and 14 being accepted by their brother, held that the service as against the present petitioner was sufficient. As no step was taken on that date and as defendant No. 12 was found absent on call, he was set ex parte alongwith other defendants. From the aforesaid order of the trial Court, it is found that the present petitioner and his brothers defendants 13 to 17 were living in joint for which the registered summons was accepted by one of the brothers and accordingly the service on defendant No. 12 was treated to be sufficient. From the order of the trial Court impugned in this case it transpires that the trial Court disbelieved the plea of the present petitoner that he was away at Calcutta with his family in the year 1977 and one of such reasons being that O.P.W. No. 2, the postal peon of the local post office, who is known to the parties, has categorically stated in his evidence that the wife of the petitioner was present when he offered the registered letter to her and on her instruction the same was handed over to defendant No. 17 (opposite party No. 17). That apart, the trial Court further observed that suit was of the year 1978, the judgment and decree was passed on 22-11-1986 and the petition under Order 9, Rule 13, C.P.C. was filed on 14-7-1987, i.e. after lapse of eight months. Added to this it was also observed that no petition under Section 5 of the Limitation Act was filed by the petitioner, praying to condone the delay in filing of the petition under Order 9, Rule 13, C.P.C. Taking all these aspects into consideration, the trial Court held that the petitioner failed to show sufficient cause for his non-appearance in the suit and accordingly dismissed the aforesaid Misc. Case. Hence, this revision.

(3.) In course of hearing, learned Counsel for the petitioner draws my attention to the order dated 12-9-1978 passed by the trial Court, which discloses that the plaintiff filed a petition supported by an affidavit praying for issue of summons to defendant Nos. 12 and 14 under Order 5, Rule 20 C.P.C. The said application also finds place in the lower Court record, wherein it has been clearly indicated that as defendant No. 12 (present petitioner) was staying outside, it was not possible to serve summons in usual course for which the prayer was made to issue summons under Order 5, Rule 20 C.P.C. The trial Court passed the order without allowing the prayer of the plaintiff and accepted the service as sufficient as the notice issued by registered post was received by the brother of the present petitioner. Admittedly, the petition under Order 5, Rule 20, C.P.C. clearly discloses the fact that the petitioner was staying outside and it was not possible to serve summons in usual course. The mode of service of summons is incorporated under Order 5, Rule 10 C.P.C. which reads as follows: