BRIJENDRA NARAIN PD SINGH Vs. KARAMCHAND SAH

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 21.5.1998 passed by the 2nd 5/1/2013 Page 95 Shobh Nath Ram Versus State Of Bihar Addl. District Judge, ' Muzaffarpur, in Misc.Appeal no. 32 of 1993 whereby and whereunder the appeal was allowed by setting aside the order dated 17.4.1993 passed by the Munsif, East Muzaffarpur, in Misc. case no.4 of 1998 rejecting the petition under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree dated 25.5.1987 passed in eviction suit no.50 of 1986.

(2.) THE petitioner filed the above - mentioned eviction suit for ejectment of the defendant -opposite party from the shop situated at village Ganipurbijha and the notices were sent both through ordinary processes and also through registered post. There was affidavit by the process server to the effect that summons have been refused by the defendants and also the registered cover has been returned with the endorsement refusal and then proceeded ex parte. After accepting the service of notice and then the suit was decreed ex parte and in execution of the decree possession of the shop house was taken by the petitioner -plaintiff -decree holder. Then the petition under Order 9 Rule 13 of the Code of Civil Procedure was filed for setting aside the ex parte decree. The same was opposed by the petitioner by filing rejoinder. The only plea was that the summons had not been served on the defendant and he had no knowledge about the suit. After considering the evidence on record, learned Munsif came to the finding that summons have been properly served and before the suit was filed there was also a notice under Section 106 of the T.P. Act which was also served on the defendant and as such, the defendant had the knowledge about the suit and hence the petition under Order 9 Rule 13 of the Code of Civil Procedure was dismissed. On appeal being preferred the appellate court came to the finding that there was irregularity in the records of the Munsif when he had not recorded his satisfaction regarding service of summons as required under Order 5 Rule 19(a) of the Code of Civil Procedure and in that way the decision of the Munsif had been reversed. It appears that this petitioner had filed several suits for eviction and decree was obtained and then possession was taken and then the tenant came up with the petition under Order 9 Rule 13 of the Code of Civil Procedure which was also dismissed and in the appellate court the orders of Munsif had been set aside on the same plea of irregularity as mentioned above. This Court in similar situation in Civil Revision No. 1608 of 1998 disposed of on 13.12.1999 had allowed the civil revision and had set aside the appellate order affirming the Munsif 'sorder of dismissal of the petition under Order 9 Rule 13 of the Code of Civil Procedure.

(3.) THUS , the revision petition is hereby allowed. The order passed by the appellate court is hereby set aside upholding the order of the Munsif.