VINDHYACHAL PRASAD SINGH Vs. PRANAB KUMAR RAJKHOWA

JUDGEMENT

(1.) Heard Mr. S Dutta, learned counsel appearing on behalf of the petitioner. Also heard Mr. P Bora, learned counsel appearing on behalf of the respondents.

(2.) The order impugned in this revision petition is the one passed in Misc Appeal Case No.3/2009 passed by the learned Civil Judge, Tinsukia. The present petitioner is the defendant in Title Suit No.70/2006 preferred by the respondent as the plaintiff for ejectment of the tenant petitioner. After registration of the said title suit, the learned Munsiff No.1, Tinsukia, who was allotted to dispose of the said Title Suit was satisfied to direct the respondent/plaintiff to issue summons to the petitioner/defendant both by way of registered post A/D and usual process. The matter was fixed on 25.09.2006. On 25.09.2006, the trial court recorded that the summons which was issued to the defendant/petitioner was returned unserved and after going through the report of the process server the trial court was satisfied to issue fresh summons upon the present defendant/petitioner fixing 08.11.2006 for service report. On that date itself, on the verbal submission of the counsel appearing on behalf of the plaintiff/respondent, the trial court allowed the plaintiff/respondent to take steps by substituted manner of service through paper publication. The said order was recorded in the order sheet on 25.09.2006. The trial court while allowing the plaintiff/respondent to take such substituted manner of service recorded that the defendant/petitioner was avoiding service of summons. On the date fixed i.e. on 08.11.2006, the notice so published in the local daily "Dainik Janambhumi" in vernacular was produced before the trial court and expressing satisfaction on the said substituted manner of service, the trial court ordered the matter to precede ex-parte against the present petitioner/defendant. Finally, the said suit was decreed ex-parte against the present petitioner. The said ex-parte decree was passed on 13.12.2006.

(3.) The present petitioner, who is a tenant under the plaintiff/respondent with respect to the suit premises in the super market at Tinsukia, while coming to open his shop on 16.03.2007 found that the same was locked by new padlocks. On inquiry the defendant/petitioner came to know from the neighboring shop owners that the plaintiff/respondent got the shop premises vacated after removing all the stocks on 12.03.2007. Thereafter, the petitioner filed an application under Order 9 Rule 13 of the Civil Procedure Code, 1908 (CPC) in the trial Court which was registered as Misc(J) Case No.35/2007. In the said application, the petitioner pleaded that no summons were ever served upon him nor he had the knowledge of the notice published in the "Dainik Janambhumi". The petitioner never refused to accept any summons issued by the court and as such he sought for setting aside the ex-parte decree and the execution thereof as he had no knowledge about the institution of the said suit prior to 16.03.2007.