BIDYADHAR BEHERA Vs. KANAKALATA NAYAK

JUDGEMENT

(1.) EX parte decree of eviction passed on 1.11.1993 in O.S.No. 633 of 1992 having been refused to be set aside by the Civil Judge (Jr. Division), Balasore and the Ad hoc Addl. District Judge (Fast Track Court), Balasore as per the impugned orders respectively passed on 26.4.2000 in Misc. Case No. 105 of 1995 and 10.12.2002 in Misc. Appeal No. 11/12 of 2001/2000, the same are under challenge in this revision at the instance of the defendant/petitioner. Plaintiff is the opposite party.

(2.) FACT , which is not in dispute, is that summons for settlement of issues was issued against the petitioner in both the ways, i.e., by regular process as well as by registered post as per the address given in the cause title. The process issued through Court was returned with the report of the process server that petitioner refused to receive the notice. The postal acknowledgment due was not however received back even after expiry of the period of one month. Therefore, the trial Court held the service of summons to be sufficient and set the defendant ex parte for his non appearance and thereafter concluded the ex parte hearing and passed the impugned ex parte decree on 11.11.1993. Opposite party instituted Execution Case No. 6 of 1994 to execute the decree. It is the case of the petitioner that on 13.3.1995 when the process server came to the spot for effecting delivery of possession of the suit property, then only the petitioner could learn about the ex parte decree, got verified the matter and found that notice was not issued to him in his correct address and that, in the suit notice was never served on him either through the process server of the Court or through registered post. Accordingly, he filed application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short 'the Code') to set aside the ex parte decree passed on 1.11.1993. In that context two names of the locality was put forth by both the parties and their respective defence in support and against the prayer under Order 9, Rule 13 of the Code. Those two names are 'Sovarampur' in which address notice was issued and 'Angaragadia' in which address, as claimed by the petitioner, he resides.

(3.) THE matter was contested between the parties in which both the parties relied on both oral and documentary evidence. The Public Relation Inspector from Balasore Head Post Office was examined as O.P.W. No. 5 and he stated that Sovarampur and Angaragadia are two different localities. On the other hand, the Record of Rights of the Major Settlement marked Ext. A discloses that the disputed property situates in mouza Sovarampur. As noted by the Courts below, the process server who offered the summons in the suit and the process server who delivered the notice in the Execution Proceeding were examined as O.P.W. Nos. 3 and 4 respectively and their evidence has been found credible. The Courts below concurrently held that there being due service of summons through Court though refused to be received by the petitioner, therefore, the defendant cannot plead ignorance about pendency of the suit or non service of summons. Both the Courts below also held that when notice was issued in both the ways, service of notice by one of the modes is sufficient and even if there is no proof of service of notice by post, that does not make any difference and that when the defendant has failed to substantiate the plea raised by him, his application under Order 9, Rule 13 of the Code is bound to fail.