MD. INSAN ALI Vs. MIR ABDUS SALAM

JUDGEMENT

(1.) This is plaintiffs appeal by special leave. He obtained an ex parte decree in Title Suit No.308 of 1980 and got delivery of possession of the land in suit in execution of the decree. But on an application filed by the defendant-respondent under Order IX, rule 13, Civil P.C., the decree was set aside and the suit was restored to file subject to payment of Tk. 500/- as adjournment cost to the plaintiff. He challenged this order by a revisional application, under section 115 of the Civil P.C, before the High Court Division, which was dismissed by a learned Single Judge of the High Court Division by order dated 6 April, 1986.

(2.) Leave was granted by us to consider the question whether the trial Court which, having been satisfied that the summons was duly served upon the defendant recorded a finding to this effect and passed the decree, has, thereafter, got power to go against its own finding and set aside the ex-parte decree when the defendant did not appear before the Court to depose on oath that the summons was not served upon him.

(3.) The suit was filed in the 3rd Court of the Subordinate Judge, Dhaka by the appellant for declaration of title to 'A' schedule land and recovery of possession in 'B' schedule land, which is a part of schedule 'A', as shown in his plaint. Case of the appellant is that when the process server went to the house of the respondent to serve the summons the latter refused to accept it whereupon the Process-server served the summons by hanging it at the gate of the respondent in presence of witnesses and there-after he submitted his report with a declaration that he had served the notice upon the defendant. The learned Subordinate Judge on perusal of the service return, along with the declaration of the process-server, recorded a finding that he was satisfied that the summons was duly served and on the finding decreed the suit ex-parte by an order dated 13 June 1984. Appellant put the decree into execution and got delivery of possession of the land through the court on 5th April 1985. Thereupon the respondent filed an application under Order IX, C.P.C. for setting aside the decree taking the ground that no summons was served upon him, but it was fraudulently suppressed and that he came to know about the suit and the decree therein for the first time when the decree was executed through court. The appellant filed a written objection denying the allegation that the summons was fraudulently suppressed and asserted that it was duly served and, in support of his contention he deposed as a witness in the court. He was cross-examined on behalf of the defendant but the defendant did not depose in the court in support of his contention that no summons was served upon him. The learned Subordinate Judge on these materials passed the impugned order on 25 April 1985 allowing the application for setting aside the ex-parte decree with an observation that in his opinion "summons was not duly served and that for ends of justice the defendant should be given a chance to contest the suit". This order was challenged in revision - Civil Revision No. 652 of 1985 - but the rule issued thereon was discharged by the learned Single Judge.