VISWANATH BOGAR Vs. GYARSILAL AGARWALLA

JUDGEMENT

(1.) Put shortly, the facts giving rise to this revision are as follows : (i) the revision petitioner, as plaintiff, instituted Title Suit No. 63/96 in tht Court of the learned Munsiff No. 1, at Sibsagar, seeking, interalia, the reliefs of eviction of the defendant (i.e. opposite party in this revision) from the suit room and delivery of vacant possession thereof to the plaintiff, the process server reported, on the body of the summons issued to the defendant (opposite party), to the effect, interalia, that the defendant had refused to accept the summons and that the summons had been hanged on the outer-side of the door of the house of the defendant. By order, dated 3.9.96, the learned trial Court, while accepting service of the said summons on the defendant, fixed the case for ex-parte hearing. The plaintiff accordingly examined himself, on 9.9.96, as a witness and the suit was decreed, on 9.9.96, itself, in favour of the plaintiff. This decree was executed on 10.10.96. The defendant filed an application, on 18.11.96, before the learned Court below under OIX R 13 and Sec. 144 read with Section 151 of the Code of Civil Procedure seeking, inter alia, the reliefs of setting aside of the said exparte decree and also of restitution of the possession of the suit rooms on the ground, inter alia, that defendant had no knowledge of the said suit, he had never refused to receive the aummons issued in the suit and no summons had been served on him. This application gave rise to Misc (J) Case ' No. 120/96. In this Misc (J) Case No. 120/ 96, the defendant also filed, on the same date i.e 18.11.96, an application under Sections of the Limitation Act seeking condonation of delay in making the application for setting aside the said decree and also for seeking restitution of the possession of the suit room, his case being, briefly stated, thus: The petitioner was evicted from the suit room with the help of police, on 10.10.96 as a result of the said exparte decree, the petitionr remained busy in shifting his articles for the whgole day on 11.10.96 and could come to the court only on 12.11.96 and upon his arrival there, he came to learn that the Civil Court stood closed due to Puja Vacation, the Court re-opened on 11.11.96 and on that very day, he made an application for certified copy of the decree, the same was made available to the defendant on 14.11.96, whereupon the defendant handed over the papers to his counsel and upon the aplications aforementioned having been prepared by the defendant's counsel, the same was filed on 18.11.96. (ii) By order, dated 18.11.96, the learned trial Court, while dealing with the application for setting aside the said ex parte decree, issued notice to the plaintiff to show cause as to why the said ex parte decree be not set aside. Aggrieved by the fact that the learned trial Court had condoned the delay without hearing the plaintiff, the plaintiff came before this Court impugning the order, dated 18.11.96, aforementioned in Civil Revision 105/97. This revision was disposed of on 14.3.1997, wherein this Court held to the effect that the order, dated 18.11.96, did not suffer from error of jurisdiction and that the petitioner, while resisting the prayer for setting aside the decree, would have the liberty to raise his objection as to why the delay in making such application be not refused to be condoned. On receiving back the matter, the learned trial Court heard the parties and passed an order on 14.6.99, whereby it condoned the delay in making the application, it also set aside the said ex parte decree and further directed restitution of the possession of the suit room in favour of the defendant. Aggrieved by the order, dated 14.6.99 aforementioned, to the extent that the same relates to condonation of delay and setting aide of the said decree ex parte, the plaintiff has come before this court in the present revision, but as regards the relief of restitution of the decretal property, the plaintiff has preferred Misc Appeal No. 16/99 in the Court of the learned Civil Judge (Senior Divn)., Sibsagar.

(2.) I have perused the materials on record including the impugned order. I have heard Mr. A. K. Goswami, learned counsel for the plaintiff-petitioner, and Mr. B. K. Goswami, learned Senior counsel appearing on behalf of defendant-opposite party.

(3.) Presenting the case, on behalf of the plaintiff-petitioner, Mr. A. K. Goswami has submitted that the learned trial Court did not consider the question of condonation of delay afresh as had been directed by this court by order, dated 14.3.97, passed in Civil Revision 105/97. Mr. A. K. Goswami has also submitted that for condonation of delay, the learned trial Court has mentioned no sustainable ground. Mr. Goswami has further submitted that the summons was duly served on the defendant inasmuch as process server's report was supported by verification and the learned trial Court was whollyjustified in treating the summons as duly served in terms of 0. VR. 19 CPC.