WAKIL BHAGAT Vs. RAMBRIKSH BHAGAT

JUDGEMENT

(1.) THIS civil revision application is directed against the judgment and order, dated 2nd of March, 1996, passed by the 2nd Additional District Judge, Muzaffarpur, in Miscellaneous Appeal No. 11 of 1989, whereby the learned Additional District Judge, after hearing the parties, dismissed the appeal and affirmed the order, dated 4.2.89 passed by the learned Munsif, Muzaffarpur (west) in Misc. Case No. 21 of 1986 rejecting the application of the defendant -petitioner, under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code).

(2.) THE facts of the case are not much in dispute. The plaintiff -Opp. Parties 1 to 4 filed Title Suit No. 6 of 1986 in the court of Munsif, Muzaffarpur (west) on 15.1.86 for declaration of title and confirmation of possession over the suit property, which consists of land and building. Summons of the suit was served on the defendant on refusal and the trial court heard the suit ex parte and passed separate decree on 16.7.86. Just on the next day i.e. 17.7.86, the defendant petitioner filed an application under Order IX Rule 13 of the Code for setting aside the ex parte decree on the ground that the summons or notice of the suit was neither served on him or he had any knowledge about the institution of the suit and hearing of the suit ex parte. The learned Munsif, after hearing the parties and after considering the evidences - both oral and documentary -came to the conclusion that the summons and notice of the suit was duly served upon the defendant and he had knowledge about the institution of the suit. The petitioner then moved in appeal before the District Judge by filing a miscellaneous appeal, which was eventually transferred to the court of Additional District Judge, Muzaffarpur. The appellate court affirmed the order of the learned Munsif and dismissed the appeal. Hence, this civil revision application.

(3.) LEARNED counsel, appearing for the petitioner, firstly, submitted that there is no service of summons or notice of the suit on the defendant -petitioner as the defendant never refused to receive notice or summons. In fact, the plaintiffs, in connivance with the postal peon and the civil court peon, got an endorsement of refusal on the service reports, and on that basis the ex parte decree was passed. Learned counsel further submitted that the trial court proceeded so hurriedly in the disposal of the suit by passing the ex parte decree that the petitioner could not get reasonable opportunity of being heard. On the other hand, learned counsel, appearing for the Opp. Parties, submitted that service of summons on the defendant has been sufficiently proved by examining witnesses including civil court peon and postal peon who had served the summons/notice and had made endorsements of refusal on the service reports. The learned counsel further submitted that the petitioner had knowledge about the institution of the suit and the date fixed in the suit for ex parte hearing.