JANAKILATA DEI @ SAHU Vs. PREMALATA NAIK

JUDGEMENT

(1.) Opposite Party as Plaintiff had filed T.S No. 243 of 1981 in the Court of the Learned Civil Judge (Senior Division), Cuttack for declaration of title and for injunction against the Petitioner, who was Defendant in the said suit. The suit was decreed ex -parte on 16.2.1985. Thereafter a petition for mutation was filed by Opposite Party for recording of her name in the Tahasil records. The prayer was allowed in Mutation Case No. 3925 of 1976 and necessary corrections were also made in the Record of Rights.

(2.) MR . Mukherjee, Learned Counsel for the Petitioner submitted that without serving any notice on the Petitioner, the Opposite Party obtained an ex -parte decree though the Petitioner was all along in possession of the lands. On 08.11.1995 for the first time the husband of Opposite Party tried to forcibly enter into the land and started cultivating operations. Protest being made, husband of Opposite Party disclosed that he had already obtained a decree from the Civil Court in favour of his wife. Thereafter, the Petitioner, it is submitted came to Cuttack, consulted with her advocate, inspected the records and came to know that an ex -parte decree was obtained against her in T.S No. 243 of 1981. On coming to know about the said fact a petition was filed under Order 9, Rule 13 of C.P.C with a prayer to set aside the ex -parte decree. The said petition was registered as Misc. Case No. 477 of 1995 in the Court of the Learned Civil Judge (Senior Division), Cuttack. In course of time the case was transferred to the Court of the Learned Civil Judge (Junior Division), First Court, Cuttack and was renumbered as Misc. Case No. 261 of 2001. Opposite Party appeared in the said case and resisted the prayer. To substantiate their case both parties adduced oral evidence. The Learned Civil Judge (Junior Division), dismissed the Misc. Case and refused to set aside the ex -parte decree. Being aggrieved the Petitioner filed M.A No. 115 of 2002 in the Court of the Learned District Judge, Cuttack. The said appeal was finally heard by the Learned Ad hoc Addl. District Judge, Fast Track Court No. lll, Cuttack and by Judgment dated 22.8.2003 the appeal was dismissed. The aforesaid orders passed by the Courts below are assailed in this Writ Petition.

(3.) IT is alleged that the summons issued in T.S No. 243 of 1981 instituted by Opposite Party were sent to the Petitioner by registered post as well as through process. The Postman reported that the addressee (Petitioner) was not available and returned the notice un -served. It is submitted that at that relevant time husband of the Petitioner, who was an employee of Special Land Acquisition (Irrigation), was posted at Talcher and the Petitioner was staying with her husband at Talcher. It is stated that the summons of the suit were never served upon the Petitioner and she had no occasion to refuse to accept the same. It is further submitted that though summons were issued through Process Server the same were never offered to the Petitioner as she was staying at Talcher. A frivolous report was submitted in the Court to the effect that the Petitioner had refused to accept the said summons and the service was treated to be sufficient. Thereafter, the suit was decreed ex parte. To substantiate the case, the Petitioner got her husband examined as witness on her behalf. He had clearly stated that the Petitioner was staying with him at Talcher at the relevant time. He also stated that the summons of the suit were never offered to her wife.