SUDHANSU MISHRANI Vs. SUBAL MISHRA

JUDGEMENT

(1.) The legal representatives of the original plaintiff, Kumar Misra, have filed this revision petition challenging the order of the Subordinate Judge Sonepur setting aside the ex parte decree in Money Suit No. 7/18 of 1977-78.

(2.) Late Kumar Mishra filed the suit for realisation of Rs. 3,000/- towards damages on account of malicious prosecution against the defendant. The said suit was decreed ex parte by the order dated 28-4-78 of the learned Subordinate Judge. The defendant filed an application under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree which was numbered as Misc. Case No. 22 of 1978. The gist of his case as stated in the petition is that he is a Brahmin who earns his livelihood by begging and he was absent in the village during the period from the months of Kartik to Falguna of the year 1977 and he went to Fuljhar side in Madhya Pradesh for begging purposes. The petitioner further stated that he was not tendered any summons in the suit and therefore there was no question of refusal of summons by him. He alleged that the plaintiff with the connivance of the Process Server manipulated to get an endorsement on the back of the summons to the effect that he refused to accept the same. Having come to learn about the ex parte decree in the village he filed the petition for setting aside the same. The plaintiff in his objection to the application under Order 9, Rule 13, C. P. C. denied the allegations of the defendant. He asserted that the plaintiff does not live by begging. He owns and possesses more than four acres of cultivable lands and gets annual yield of 28 pudugs of paddy besides other Rabi crops, He also denied the allegation that the plaintiff was absent from the village from the month of Kartik to Falguna, 1977 having gone to Fuljhar side in Madhya Pradesh for the purpose of begging. He, however, stated that even if the absence of the plaintiff during this period is accepted it is not relevant for the purpose of the case. He asserted that the summons in the suit were duly tendered to the defendant who refused to accept the same. The original plaintiff Kumar Mishra having died during the pendency; of the Misc. case, his legal representatives, the petitioners in the revision petition, were substituted in his place.

(3.) The learned Subordinate Judge on a consideration of the evidence adduced by both the parties did not accept the case of the defendant that he was not tendered with the summons in the suit by the Court peon. But the learned Subordinate Judge allowed the Misc. case and set aside the ex parte decree exercising his inherent power under Section 151, C. P. C. on the consideration that the amount claimed in the suit for malicious prosecution is heavy. The relevant portion of the order is quoted hereunder:--