KRISHNA KUMAR SINGH Vs. VIDYA DEVI

JUDGEMENT

(1.) This appeal is directed against the order dated 25.11.1999 passed by Subordinate Judge XI, Patna in Misc. Case No. 3/98 arising out of Title Partition Suit No. 431 of 1,995 which the petition under Order IX, Rule 13 CPC has been rejected.

(2.) The Title Partition Suit No. 431 of 1995 was filed by Respondent No. 1, namely, Smt. Vidya Devi for declaration of exclusive title and possession over the property mentioned in Schedule III of the plaint by virtue of oral partition and further for passing of preliminary decree of partition of half share in respect of the property mentioned in Schedule I of the plaint and also for partition of half share of the property mentioned in Schedule II of the plaint. The abovementioned suit was decreed ex parte against defendant Nos. 1 to 5, 9 and 10. Defendant Nos. 6, 7, 8, 11 and 12, though appeared but, did not file any written statement, despite service of notice on all. Howevef, according to the defendant appellant he had no knowledge of the suit and the plaintiff got the ex parte decree by suppressing service of summons upon main defendants and when it came to his knowledge he filled Misc. Case No. 3 of 1998 under Order IX, Rule 13 for setting aside the judgments and decree which has been dismissed by the impugned order. By the impugned order, learned Subordinate Judges XI after taking into consideration the service of summons through various modes including by publication in the newspaper Hindi daily 'Hindustan' and that the defendant-appellant did not get himself examined and also on consideration of the evidence of applicant-witnesses, found it difficult to hold that there was no valid service of summons on the appellant. According to the learned Subordinate Judge the defendant-appellant was very much aware of the partition suit and, accordingly has rejected the application for setting aside the ex-parte decree.

(3.) Learned Counsel for the appellant submitted that the learned Subordinate Judge has erred in law in rejecting the prayer of the appellant for setting aside the ex parte decree. According to him, there has been complete non-compliance of the requirments for substituted service under Order V, Rule 20, C.P.C., and thus, the court-below should not have relied upon the publication of notice in Hindi 'Hindustan' for coming to the conclusion that there was valid service of summons. Moreover, publication in the newspaper was on 7.1.1997 to appear on 10.1.1997, which was not sufficient as per the law settled. According to him in the case of Bhagwan Singh & Ors. v.Ram Balak Singh & Anr. 12 days notice has been held to be not sufficient. It has also been submitted by the learned counsel for the appellant that it was incumbent upon the plaintiff-respondents to bring evidence to show that there was service of notice and the Court should not have simply relied upon the report of the process server incorporated in the order sheet. This also, according to him, is good ground Nor setting aside the ex parte decree. He referred to the decision of the Apex Court in case of Satya Narain Bajoria & Anr. v. Ramnarain Tibrewal & Anr.