GOPAL CH. KALITA Vs. CHIDDI SAU

JUDGEMENT

(1.) THIS revision petition is against the order dated 18 -2 -1980 passed by Shri Jaisingh Chetri, Sadar Munsiff, Gauhati in Misc. Case No. (J) 19 of 1979 setting aside the ex parte decree passed by him on 28 -2 -1979 in Title Suit No. 26 of 1978. The circumstances leading to this petition are as follows. The petitioner instituted ejectment suit being No. 26 of 1978 against the defendant -respondent for ejectment from the suit house and for recovery of arrear rent together with compensation amounting to Rs. 56.50 p. In that suit summons was issued to the defendant -respondent. It is alleged that he refused to accept the summons and the Process Server affixed a copy of the summons on the wall of the dwelling house of the respondent. But the court directed the summons to be served by registered post and accordingly the summons was issued to the respondent by registered post with acknowledgment due which was returned to the court with an endorsement by the postal peon to the effect that the addressee refused to accept the envelope. On the direction of the court, the summons was reissued by registered post with acknowledgement due and this time also the respondent refused to accept the cover containing the summons which was returned by the Postal Department with an endorsement of the postal peon that the defendant -respondent refused to accept the envelope containing the summons. Thereafter the court took that the summons had been served on the defendant -respondent and by order dated 9 -2 -1979 the suit was fixed for hearing ex parte on 23 -2 -1979. On this date, the learned court heard the plaintiff -petitioner and then passed the impugned order of ejectment and arrear rent against the respondent defendant on 28 -2 -1979. The plaintiff -petitioner thereafter started execution proceeding in title execution case No. 6 of 1979 and in execution of the decree obtained delivery of khas possession of the house through court by ejecting the respondent on 8 -4 -1979. The respondent defendant filed an application on 9 -4 -1979 to the court under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree on the allegation that he had not been served with any summons or notice of the case or of the execution proceeding. On this petition Misc. Case No. (J) 19 of 1979 was started. In this case the plaintiff -petitioner submitted a written objection denying the allegations of the defendant -respondent and taking the plea of bar of limitation. Both parties adduced evidence, oral and documentary. The allegation of the defendant -respondent is that during the relevant time he was away from Assam and was living in Bihar at his permanent residence in connection with the illness of his father and that no summons was issued to him either by post or otherwise. The learned Munsiff found that the summons was not duly served on the defendant -respondent in the suit and so he set aside the ex parte decree and fixed 26 -2 -1980 for steps in the main suit. Against this order, the present revision petition has been filed by the plaintiff.

(2.) IN this revision petition the points to be determined are whether the summons was duly served on the defendant -respondent in the suit in which the ex parte decree was passed and whether the Misc. Case No. (J) 19/79 under Order 9, Rule 13, C. P. C. was time barred.

(3.) IT was argued on behalf of the petitioner that in suit No. 26 of 1978, service of summons through post to the defendant -respondent was accepted by the court as valid. It was further argued that in the Misc. Case, the learned Munsiff did not discuss the evidence on record. But as is found in his order dated 18 -2 -1980, learned Munsiff considered the evidence although there has been no detailed discussion of the evidence. I find no reason to think that the impugned order should be set aside on this ground. The main point argued in this case on both sides is regarding the provisions of sub -rule (2) of Rule 19A of Order 5, C. P. C, These provisions read as follows: - -