1. Suit for specific performance — Ex-parte decree — Application to set aside decree under Order IX, Rule 13, C.P.C. — Dispute over service of notice. (Para 2 )
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1997 Supreme(SC) 362
1997(3) Supreme 396
SUPREME COURT OF INDIA
K. Ramaswamy and G.T. Nanavati, JJ.
Mst. Bhabia Devi -Petitioner
versus
Permanand Pd. Yadav -Respondent
Special Leave Petition (C) No. 3559 of 1997
Decided on 24-2-1997
Counsel for the Parties :
For the Petitioner : S.R. Yadav and J.D. Jain, Advocates
The court held that findings of fact regarding the refusal of notice, based on evidence, justify an ex-parte decree. Such findings are not disturbed in a special leave petition, particularly when the merits of the case were not challenged through appeals under Section 96 or 100 of the CPC.
Headnote:Civil Procedure Code, 1908-Order 9 Rules 13-Application for setting aside ex-parte decree on ground that petitioner was not residing in village and notice could not be deemed to have been served on her-Evidence of process server and a witness that petitioner refused to sign on notice-Service was effected by way of Gazette publication also-Petitioner was rightly set ex-parte. (Paras 2 & 3)
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2. Petitioner contended that notice was not served due to non-residence at the specified location and inability to access Gazette publication. (Para 2 )
3. Evidence established that the party refused to sign the notice and acknowledge registered mail, and notice was further provided via Gazette publication. (Para 2 , 3 )
4. A party who refuses to accept service of notice is deemed to have been served, justifying an ex-parte decree. (Para 3 )
5. Special leave petition dismissed. (Para 4 )
6. Does refusal to accept a notice constitute valid service for the purpose of an ex-parte decree?
Yes. When evidence demonstrates that a party refused to sign the notice or acknowledge registered mail, the court may conclude that the party was rightly set ex-parte. (Para 2 , 3 )
7. Can a court entertain a challenge on the merits of a case if the underlying decree was not challenged through appropriate appeals under Section 96 or 100 of the C.P.C.?
No. The court will not examine the merits of the case if the appeal was not the subject matter of appeals filed under Section 96 or Section 100 of the C.P.C. (Para 3 )
ORDER
This special leave petition arises from the order of the High Court of Patna, made in Appeal from the Original Order No. 406/86 on July 24, 1996.
2. The respondent had filed a suit for specific performance on the foot of an agreement alleged to have been executed by the petitioner. The petitioner was served notice but since she did not contest the suit, ex-parte decree was granted. Subsequently, the petitioner filed an application under Order IX, Rule 13, C.P.C. seeking setting aside of the ex-parte decree. Therein, her specific case was that she was not residing at Garhia village and, therefore, the notice could not be deemed to have been served on her. The endorsement is not correct. The question was gone into by the courts below after recording the evidence of one Laxuman Yadav, Mahendra Yadav and process server. It is their case that on January 15, 1985 when the summons were handed over to Mst. Bhabia Devi and when she was acquainted with the facts, she refused to sign or put thumb impression on the notice. When the process server had gone to serve it on her personally on April 2, 1984 to the village and also on April 9, 1984 when the registered card acknowledgement was sent, she refused to acknowledge it. Under those circumstances, the courts below have concluded and the High Court has recorded as under:
"Apart from the aforementioned two modes for service of notice, as I have already noticed, there was yet another mode by way of Gazette publication. An attempt has been made on behalf of the appellant to say that she being illiterate lady could not learn about the Gazette publication."
3. This is a finding of fact on appreciation of the evidence. Thereby, it is clear that petitioner had refused to accept the notice. Consequently, she was rightly set ex-parte. The learned counsel for the petitioner seeks to contest the case on merits. We cannot go into the merits since the appeal was not subject matter in any appeals filed either under Section 96 or Section 100, C.P.C.
4. The special leave petition is dismissed.
SLP dismissed.
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Parallel Citations of other Journals :
Mst. Bhabia Devi v. Permanand Pd.Yadav, 1997(3) Supreme 396 : 1997(2) Scale 553
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