MD. HYDER ALI MIA Vs. RAZIA BEGUM

JUDGEMENT

(1.) This appeal by leave has arisen out of the judgment and order dated 4-7-1994 passed by the High Court Division in First Miscellaneous Appeal No.696 of 1991 allowing the appeal upon setting aside judgment and order dated 26-8-1991 passed by the learned Subordinate Judge (now Joint District Judge), Bogra in Miscellaneous Case No.13 of 1987 by which the ex parte judgment and decree dated 13-3-1986 passed in Other Class Suit No. 46 of 1986 was set aside and thereby the above suit was restored to its original file and number.

(2.) The appellant instituted the above suit for specific performance of contract and on obtaining ex parte decree dated 10-3-1986 got a sale deed executed and registered in his favour through Court in Other Class Execution Case No. 6 of 1986; subsequently, the defendant No.1 filed Miscellaneous Case No. 13 of 1987 under Order IX, rule 13 of the Code of Civil Procedure for setting aside the above ex parte decree on the grounds that the summons was not served upon her and that on 19-6-1985, i.e. before service of summons, she left Bangladesh for her father's residence at Peshawar in Pakistan and her husband, defendant No. 2, was untraceable since December, 1985. The plaintiff contested the above miscellaneous case asserting that summons were duly served upon the defendants and the notices were also sent upon the defendants by registered post which being refused by the defendants, according to law, were deemed to have been served upon the defendants. The learned Subordinate Judge (now Joint District Judge), Bogra dismissed the above miscellaneous case on the findings, inter alia, that Ext 'Ka' series show that the summons of the suit were duly served upon the defendants through process server and OPW No. 3, the attesting witness, proved service of summons while the defendants failed to prove that no summons were served upon them and moreover, the defendants did not challenge the service of summons which were sent through registered post and sending of summons through registered post has got strong legal presumption of service under section 27 of the General Clauses Act; it is an admitted fact that the husband of the defendant No.1 some time in the year 1985 took shelter in the residence of his brother Md. Rafiq Khan whose residence is situated at Sutrabur, Bogra Town, Bogra and therefore, the address of the defendants given in the plaint were correct address and services of summons were made in that address; the allegation of not knowing the whereabouts of Abdur Rashid Khan, the husband of the defendant No. 1, is nothing but myth and altogether disproved by evidence; the said Md. Abdur Rashid Khan was made party in the miscellaneous case as opposite party No. 3 and notices were duly served upon him through court and also by registered post and, as such, evidently he is not untraced; since the summons were evidently served upon the defendant No.1 and yet she did not appear to contest the suit, the suit was rightly decreed ex parte. Being aggrieved, the defendants filed the above miscellaneous appeal before the High Court Division and after hearing allowed the appeal.

(3.) Leave was granted on the submissions that the High Court Division erred in holding that the summons were not served upon defendant No.1 as there was no tender of the same upon her and that the High Court Division overlooked the provisions of rule 15 of Order V and also rule 3 of Order III of the Code of Civil Procedure, and since summons sent by registered post was also returned with the postal peon's endorsement of 'refusal' by the defendants, the High Court Division erred in holding that the said notices were not duly served.