BIBI RAJIAULLAH Vs. MD.RETAZ

JUDGEMENT

(1.) The present writ petition is taken up today through Video conferencing.

(2.) The learned counsel for the petitioner submits that the plaintiff/respondent no. 1 filed Partition Suit no. 13 of 2016 claiming therein that he and the defendant nos. 1 to 3/respondent nos. 2 to 4 are own and full brothers and are the sons of late Md. Hanif, who had purchased the land in Mouza- Barhi, Thana-Barhi, Thana No. 71, District Hazaribag under Khata No. 207, Plot Nos. 1056 and 1057, measuring total area of 12 decimals in the name of his four sons i.e., respondent nos. 1 to 4 by way of registered sale deed no. 4086 dtd. 28/3/1988. When the plaintiff/respondent no. 1 demanded his l/4th share seeking partition of the suit land, the defendant nos. 1 to 3/respondent nos. 2 to 4 refused the same which gave rise to filing of the said partition suit. The said suit proceeded ex-parte and vide judgment dtd. 21/4/2018, the same was decided in favour of the plaintiff/respondent no. 1 without contest. Thereafter, decree was prepared on 5/5/2018. The petitioner claimed that she did not come to know the said judgment and decree earlier and only when the respondent no. 1 tried to interfere with the possession of the petitioner over the suit property on 7/8/2018, she came to know about the same and thus filed a petition dtd. 27/8/2018 under Order IX Rule 13 CPC for setting aside the ex-parte judgment and decree claiming that no notice was ever served to her in the said partition suit. However, the petitioner's application was dismissed by the trial court vide order dtd. 6/10/2018 passed in Civil Misc. Case No. 20/2018. Aggrieved thereby, the petitioner filed Civil Misc. Appeal No. 09 of 2018 which was also dismissed vide impugned order dtd. 21/5/2019 giving rise to filing of the present writ petition.

(3.) The learned counsel for the petitioner submits that as per the order sheet of the trial court dtd. 2/3/2016, notices were issued and service report dtd. 22/3/2016 attached with the record reflected that the house of the petitioner was locked as she was not in her house. It is further submitted that the learned court below without issuing fresh notice and without following the due process as prescribed under Order V Rule 20 of the Code of Civil Procedure, ordered for service of notice through paper publication and thereafter proceeded ex-parte. The learned trial court and the appellate court failed to appreciate the provisions of Order V Rule 20 CPC and only on perusing the service report of notice which mentioned that the doors were found locked, believed that the petitioner was keeping herself out of way for the purpose of avoiding service of notice and then ordered for service of notice through paper publication. It is also submitted that in view of Order V Rule 20 CPC, upon satisfaction that the present petitioner was keeping herself out of way for the purpose of avoiding service of notice or that for any other sufficient reason, the summons cannot be served in ordinary way, the trial court ought to have ordered for the summons to be served by affixing a copy thereof at some conspicuous place in the court-house and also upon some conspicuous part of the house (if any) in which the petitioner was known to have lastly resided or carried on business or personally worked for gain. However, the trial court without assigning cogent reason, bypassed this mandatory provision and ordered for service of notice through paper publication which is an abuse of the process of court. It is further submitted that the respondent nos. 2 to 4 are own brothers of the respondent no. 1 who sold the property to the present petitioner and they did not turn up in the trial court because they and the plaintiff/respondent no. 1 had similar interest. Thus, they played fraud with the court behind the back of the petitioner in obtaining ex-parte decree which is not fair and legal in the eyes of law. It is also submitted that the learned Principal District Judge, Hazaribag without correctly analysing the provision under Order IX Rule 13 as well as Order V Rule 20 CPC, mechanically dismissed the appeal filed by the petitioner.