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HIGH COURT OF CALCUTTA
Bhaskar Bhattacharya, J.
Bhola Nath Das
Versus
Basanti Rani Neogi & Ors.
C.O. No. 1897 of 2000
Decided On : March 30, 2001
CIVIL PROCEDURE CODE - ORDER 9 RULE 13 - SUMMONS - SERVICE - IRREGULARITY - WAIVER - PROVISO - APPLICABILITY - EX PARTE DECREE - SETTING ASIDE - LIMITATION - DELAY - CONDONATION.
Fact of the Case:
Defendant, in a suit for declaration, recovery of possession, and injunction, filed an application under Order 9 Rule 13 of the Code of Civil Procedure (CPC) to set aside an ex parte decree passed against her. She claimed that she had no knowledge of the summons and acquired knowledge of the decree through a third party on July 18, 1985. The trial court dismissed the application, finding that the summons was duly tendered to her but she refused to accept it, and that she had knowledge of the proceedings from May 1982. The first appellate court reversed the trial court's decision, holding that the summons was not accompanied by a copy of the plaint, rendering the service invalid. The plaintiff challenged this decision in a revisional application under section 115 of the CPC.
Finding of the Court:
The High Court held that the first appellate court erred in setting aside the trial court's order. It found that the defendant failed to prove that she filed the application within 30 days from the date of knowledge of the ex parte decree. The court also held that the irregular service of summons, without a copy of the plaint, did not amount to 'non-service' and could be waived by the defendant. The court relied on the proviso to Order 9 Rule 13 of the CPC, which states that an ex parte decree shall not be set aside if the defendant had time to appear in the proceeding and contest the suit.
Issues: 1. Whether the defendant had knowledge of the ex parte decree within 30 days of filing the application under Order 9 Rule 13 of the CPC? 2. Whether the irregular service of summons, without a copy of the plaint, amounted to 'non-service' and could be waived by the defendant? 3. Whether the defendant had sufficient time to contest the suit after due tender of the summons by registered post?
Ratio Decidendi: 1. The court held that the defendant failed to prove that she had knowledge of the ex parte decree within 30 days of filing the application under Order 9 Rule 13 of the CPC. The court noted that the defendant specifically mentioned July 18, 1985, as the date of knowledge of the decree and merely prayed for condonation of delay if there was any. Thus, on the basis of such allegation, the delay in filing the miscellaneous case cannot be condoned. 2. The court held that the irregular service of summons, without a copy of the plaint, did not amount to 'non-service' and could be waived by the defendant. The court relied on the proviso to Order 9 Rule 13 of the CPC, which states that an ex parte decree shall not be set aside if the defendant had time to appear in the proceeding and contest the suit. The court found that the defendant had sufficient time to contest the suit after due tender of the summons by registered post. 3. The court held that the defendant had sufficient time to contest the suit after due tender of the summons by registered post. The court noted that the defendant had knowledge of the suit from May 1982, as she was cross-examined about it in another proceeding.
Final Decision: The High Court set aside the order of the first appellate court and restored the order of the trial court, dismissing the defendant's application under Order 9 Rule 13 of the CPC.
Bhaskar Bhattacharya, J.
This revisional application is at the instance of a plaintiff in a suit for declaration, recovery of possession and injunction and is directed against order dated May 18, 2000 passed by the learned Additional District Judge, 9th Court, Alipore in Misc. Appeal No.1 of 1996 thereby setting aside order No. 132 dated December 12, 1995 passed by the learned Assistant District Judge, 9th Court, Alipore in Misc. Case No. 20 of 1985.
2. The present petitioner brought against the opposite parties in the 9th Court of Assistant District Judge, Alipore a suit being Title Suit No. 22 of 1982 for declaration of title, recovery of possession and permanent injunction. The said suit was decreed ex parte against the opposite parties on April 23, 1985. Subsequently, on July 22, 1985 the opposite party No.1 came up with an application under Order 9 Rule 13 of the Code of Civil Procedure and section 5 of the Limitation Act for setting aside the said ex parte decree. The said application gave rise to Misc. Case No. 20 of 1985.
3. In the said miscellaneous case, the specific case of the opposite party No.1 was that no summons of the aforesaid suit was served upon her and that from one Subodh Mridha of Kakdeep she came to know on July 18,1985 that the aforesaid suit was decreed ex parte. According to the opposite party No.1 the said Subodh Mridha went to the seresta of Amal Kumar Ghosal, Advocate, where the said Shri Mridha came to know from Sudhir Bhattacharya, the clerk of Mr. Amal Kumar Ghosal that such suit has been decreed ex parte.
4. In the application under section 5 of the Limitation Act, the opposite party specifically asserted that she came to know about the ex parte decree on July 18, 1985. However, it was prayed that if it appeared to the court that there was delay in filing the miscellaneous case, the said delay might be condoned.
5. The aforesaid miscellaneous case was contested by the present petitioner by filing written objection thereby denying the allegation made in the application. It was the definite case of the petitioner that the summons of the suit was sent through registered post but the opposite party No.1 deliberately refused to accept the same. The further contention of the petitioner was that he was examined as DW 1 in Title Suit No. 584 of1970 in the 3rd Court of Munsif, Diamond Harbour and on May 10, 1982 in answer to the question put in cross-examination on behalf of the plaintiffs wherein the opposite party No.1 was plaintiff No.4, he specifically stated that he filed the instant suit being Title Suit No. 22 of 1982 and as such the opposite party No.1 was well aware of the pendency of the Title Suit No. 22 of 1982 at least from May 10,1982.
6. The learned trial Judge on consideration of the entire materials on record including oral evidence adduced by the parties disbelieved the case of the opposite party No. 1 and dismissed the miscellaneous case thereby holding that the summons was tendered to her but she deliberately refused to accept the same and that she had knowledge to the proceeding even from May, 1982. The learned trial Judge held that the date of acquiring knowledge of the ex parte decree as pleaded in the application under Order 9 Rule 13 of the Code was a false one.
7. Being dissatisfied, the opposite party No.1 preferred a miscellaneous appeal being Misc. Appeal No.1 of 1986 and by the order impugned herein the learned first appellate court below has set aside the order passed by the learned trial Judge and has allowed the application under Order 9 Rule 13 of the Code.
8. Being dissatisfied, the petitioner has come up with the instant revisional application under section 115 of the Code of Civil Procedure.
9. Mr. Roychowdhury, the learned counsel appearing on behalf of the petitioner has firstly contended that the learned first appellate court below acted in the exercise of its jurisdiction illegally and with material irregularity in setting aside the order passed by the learned t
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