RAVINDRA WOOLEN MILLS Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) Since in these two appeals, which have been placed for hearing one after another and they have been heard together, parties are same and as many questions of facts and law are common, they are being disposed of by this common judgment.

(2.) These appeals have been filed against orders rejecting petitioners filed by the appellants under Order IX Rule 13 of the Code of Civil Procedure (hereinafter to be referred to as 'the Code') for setting aside the exparte decrees of the same Court in Title Suit No. 104 of 1982 and Money Suit No. 11 of 1982 respectively.

(3.) Relevant Facts of M. A. no. 228 of 1986.Title Suit No. 104 of 1982 was filed by the respondent for grant of a Money decree for Rs. 1,81,338.30 paise along with interest pendente lite along with other incidental reliefs. The plaint was admitted by an order dated 4-12-1982 and the respondent was directed to deposit the summons mosannas and registered covers along with Talbana etc. which was complied after several opportunities. On 12-12-1983 it appears that the plaintiff also deposited the draft of the Gazette publication and the subordinate judge sent the same for its necessary publication. By an order dated 13-1-1984, it appears that the Subordinate Judge received the cutting of the publication but without recording any express finding about the publication of the notice in any of his order, fixed the suit for an ex pane hearing and thereafter the suit was finally heard exparte on 16-7-1984 and on 19-7-984 an order was passed decreeing the suit. The appellants filed an application dated 7-8-1984 under Order IX Rule 13 of the Code for setting aside the aforementioned exparte decree alleging chiefly as follows ;(i) The plaintiff has obtained a totally illegal exparte decree by conducting entire proceedings bala bala about which, they had no knowledge, (ii) They came to know of the exparte decree through a rumour of 23rd July, 1984 and thereafter getting the records of the suit inspected on 24-7-1984 learnt that there has been no service of notice of them, (iii) The application no. 1 Rabindra Kumar Singh has teen residing in the town arid district Bikaner (Rajasthan) since 1978 where he does busineis because of the difference cropped up amongst them about which the plaintiff had full knowledge but this fact has been deliberately concealed. No postman made any tender of the registered covers and the report made on the registered post was a fraudulent act on court, (iv) The applicant no. 2 Birendra Kumar Singh has been residing in the town and district Mirzapur since four or five years in connection with business about which also the plaintiff had knowledge from the very beginning and from the report submitted on the registered cover, it was clear that he does not reside at Bidhunagar and that he always resided outside, (v) No publication was made in the Gazette at all and this has been deliberately done by the plaintiff, From the inspection of the records, it appears that summons were printed in "Nagrik" which is wholly illegal and improper inasmuch as "Nagrik" had no circulation at all nor is it sold in market and that no one knows about such paper either in the Arrah town or in the Anchal Koilwar. (vi) By the exparte decree the applications have been seriously prejudiced more so when frjm the records of the Bank It would appear that the plaintiff was not entitled to any relief. This application was registered as Misc Case No, 23 of 1984 and notice was issued to the respondent who filed a rejoinder dated 16-3-1985 denying the allegations and asserting further that the summons with copies of the plaint were sent under registered posts with covers besides they were also served by the court peon and an additional precaution was taken by publication in the local 'Nagrim paper' in which notices of the courts are generally published which has got circulation that the applicants had knowledge of the suit through summons as also the publication in the aforementioned news-paper, that Rabindra Kumar Singh, one of the partners of the firm does not live in Bikaner permanently, and that partners are full brothers who are still joint and they have joint liabilities. The applicants in support of their case examined Raghubir Prasad, a clerk as their witness no. 1 who had stated in his evidence that the application Rabindra Kumar Singh does not reside at Koilwar rather at Bikaner in connection with his business, one Jai Narain Singh P. W. 2 a clerk who had stated in his evidence that he knows the applicant Rabindra Kumar Singh who has been residing at Mirzapur in connection with his business since 5/6 years and that he had never seen him during that period either at village Bagura or at Bidhunagar. One Surendra Singh as PW 3, a cultivator of a village within the police station Koilwar who had stated that he had never seen either sale or reading of Nagrik by any one. The applicant nos. 3 and 2 also examined themselves as AW nos. 4 and 5 respectively and tried to support their case. One Vinod Roy was also examined by them who stated that he works as Chaukidar in the factory of the three brothers at Bidhunagar and that their youngest brother Dhirendra Kumar Singh by remaining in his village Bagura does cultivation work. The respondent examined a clerk Ram chandra Prasad, as O P W. 1 who has stated in bis evidence that he has been doing his work since 25-26 years and that the notices in a connection with the litigations are being published in a paper "Chhatra". One Lalan Prasad, Cashier of Bagar Branch of the Bank was examined as OPW 2 The Dak Peon, Parmeshwar Prasad Singh was examined as OPW 3 and a diesel mechanic Bijendra Kumar Singh was examined as OPW 4 OPW 2 had stated that prior to his appointment he was working as peon as well as Binder (Daphtri) in the Kailwar Branch of the Punjab National Bank. OPW 3 has stated that he has been working as postal peon of Karkara post office which is Branch post office of Koilwar. He has also stated that his nephew Bijendra Kumar Singh had gone to serve registered envelopes on 19-5-1983 and that endorsement on the envelopes are in his writings which were marked as Exhibits A to A/3. He explained that since he had gone on leave he had not taken the registered envelopes but as per the rule of his department if a postal peon goes on leave he must keep one man in his place and on the basis of that rule his nephew Bijendra Kumar Singh had gone to serve the registered envelopes. OPW 4 the nephew stated that be had taken four registered envelopes which were refused to be accepted by three of them. In his cross examination he had categorically admitted that he was never appointed as postal peon and that he had no received any Government order to work in place of his uncle. From the records of Misc. Case No. 23 of 1984 I find that there is a bill dated 29-11-1983 furnished by Chhatra (Hindi News weekly) submitted in regard to the publication of notices in regard to eight different tuits including the suit in question.