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High Court Of Calcutta
Bhaskar Bhattacharya
JAWAR PRASAD SHAW - Appellant
Versus
JHARNA GHOSH - Respondent
C. O. 1513 Of 2004
Decided On : 09/10/2004
ORDER 9 RULE 13 - SETTING ASIDE EX PARTE DECREE - Limitation - Date of Knowledge - Pleadings - Evidence - Service of Summons - Restoration of Suit - Fresh Notice.
Fact of the Case:
1. Suit decreed ex parte on 30th November, 1993. 2. Application under Order 9 Rule 13 filed on 20th April, 1994. 3. No application under Section 5 of the Limitation Act. 4. No explanation for delay in filing the application. 5. Trial Court dismissed the application as barred by limitation. 6. First Appellate Court affirmed the Trial Court's order.
Finding of the Court:
1. Limitation starts from the date of knowledge of ex parte decree, not from the date of passing of the decree. 2. Defendant specifically denied service of summons. 3. Plaintiff did not examine either the postal peon or the process server to prove service. 4. No fresh notice was given to the defendant after restoration of the suit under Order 9 Rule 4 of the Code.
Issues: 1. Whether the application under Order 9 Rule 13 was barred by limitation? 2. Whether the summons of the suit was served upon the defendant? 3. Whether fresh notice should have been given to the defendant after restoration of the suit under Order 9 Rule 4 of the Code?
Ratio Decidendi: 1. In an application under Order 9 Rule 13 on the ground of non-service of summons, the applicant is not required to mention the date of knowledge of ex parte decree. 2. The Court can consider evidence adduced by the applicant in support of the date of knowledge, even if not pleaded. 3. The plaintiff is required to specify in the written objection that the application for setting aside ex parte decree was filed beyond 30 days from the date of knowledge of such ex parte decree. 4. The onus is on the plaintiff to rebut the evidence of the defendant alleging non-service of summons. 5. If a suit is dismissed for default and restored under Order 9 Rule 4 of the Code, the defendant is entitled to a fresh notice of restoration of the suit and the date of fixation of further hearing.
Final Decision: The application under Order 9 Rule 13 filed by the original defendant is allowed on the ground of non-service of summons.
( 1 ) THIS civil revisional application under Article 227 is at the instance of heirs and legal representatives of a deceased defendant and is directed against order No. 4 dated 18th May, 2004 passed by the learned Civil Judge (Sr. Division), Sealdah in Misc. Appeal No. 24 of 2002 thereby affirming order No. 67 dated 30th March, 2004 passed by the learned Munsif, Second Court, sealdah in Misc. Case No. 48 of 1994 rejecting an application under Order 9 Rule 13 of the Code of Civil Procedure filed by the predecessor-in-interest of the present petitioners.
( 2 ) THE following facts are not in dispute. The opposite party filed a suit being Title suit No. 175 of 1989 in the Second Court of munsif, Sealdah for eviction of one Motilal shaw, the predecessor-in-interest of the present petitioners on the grounds mentioned in the section 13 of the West Bengal Premises tenancy Act, 1956. The said suit was decreed ex parte on 30th November, 1993.
( 3 ) IN the month of April, 1994, Motilal shaw filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside such ex parte decree on the specific ground that the summons was not served upon him. The said application gave rise to Misc. Case No. 48 of 1994.
( 4 ) THE opposite party filed written objection to the said application under Order 9 Rule 13 of the Code of Civil Procedure thereby denying the allegations made in the application and it was specifically asserted that summons was duly served upon the defendant both through Court bailiff and under registered post with acknowledgement due. It was further stated in the said written objection that the petitioner was aware of the date of hearing of the suit but deliberately decided to refrain from contesting the suit and allowed the same to be decreed ex parte only for the purpose of harassing the opposite party.
( 5 ) AT the time of hearing of the said application under Order 9 Rule 13 of the Code of Civil Procedure, one of the heirs of the deceased defendant filed affidavit-in-chief on behalf of the substituted heirs and in such affidavit-in-chief he specifically stated that his father received a notice of show-cause under Order 21 Rule 97 of the Code of Civil Procedure on 8th April, 1994 and with the said notice he accompanied his father to a learned Advocate and from the said learned Advocate after enquiry his father came to know that an ex parte decree was passed on 30th November, 1993. In the said affidavit it was further stated that the suit for eviction was initially dismissed for default on 1st April, 1992 and on an application under Order 9 Rule 4 of the Code, the said suit was restored on 13th June, 1992 but even thereafter, no summons had been served upon the father of the said deponent.
( 6 ) IT appears that the opposite party did not file any evidence on affidavit nor did he cross-examination the deponent of the affidavit-in-chief given on behalf of the present petitioners.
( 7 ) THE learned Trial Judge by Order No. 67 dated 30th March, 2004 was pleased to dismiss the application under Order 9 Rule 13 of the Code filed by the original defendant on the ground that although the suit was decreed ex parte in the month of November 1993 and the application under Order 9 Rule 13 was filed on 20th April, 1994, no application under section 5 of the Limitation Act was filed and the petitioner did not offer any explanation which prevented the defendant from filing the Misc. Case within time prescribed by law. The learned Trial Judge further held that evidence on affidavit was not supported by any corroborative evidence or document of the claim that due to ailment, the defendant could not contest the suit. The learned Trial Judge, thus, rejected the application mainly on the ground that the same was barred by limitation and in addition to such ground, stated that the summons issued to the defendant was duly served.
( 8 ) BEING dissatisfied, the present petitioners preferred an appeal
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