Back
2018 Supreme(Cal) 568
IN THE HIGH COURT OF CALCUTTA
HARISH TANDON, J.
Mahmud - Appellant
Vs.
Nasiruddin Molla - Respondent
C.O. No. 3539 of 2017
Decided On : 11-01-2018
For the Appellant : Tanmoy Mukherjee and Shounak Bhattacharya.
For the Respondent: Haradhan Banerjee, Amitava Pain, Nilmoni Das and P.P. Mukhopadhyay.
Proper service of summons and the right of the defendant to contest the suit when a serious question as to the title over the property is raised.
Headnote:
Revisional Application - Recovery of Possession - Code of Civil Procedure, Order V Rule 9 - The court set aside the ex parte decree and restored the suit to its original file and number, directing the petitioner to file a written statement within thirty days and the trial court to dispose of the suit expeditiously.
Fact of the Case:
The suit was filed by the plaintiff claiming ownership of the property and alleging that the petitioner, as the temporary occupant, failed to vacate the property after the agreed period. The petitioner contested the ex parte decree, claiming that the summons were never served upon him and challenging the plaintiff's right, title, and interest in the property.
Finding of the Court:
The court found that the service of summons was not properly effected, and there were discrepancies in the orders recording the service of summons. It also noted that the evidence of the process server and the postal peon was not reliable. The court set aside the ex parte decree and restored the suit to its original file and number, directing the petitioner to file a written statement within thirty days and the trial court to dispose of the suit expeditiously.
Issues: The main issue was the validity of the service of summons and the petitioner's right to contest the suit based on the alleged discrepancies in the service of summons and the plaintiff's claim of ownership.
Ratio Decidendi: The court held that when a serious question as to the title over the property is raised, an opportunity should be given to the defendant to contest the suit, and the service of summons must be properly effected as per the requirements of the law.
Final Decision: The revisional application was allowed, the ex parte decree was set aside, and the suit was restored to its original file and number. The petitioner was directed to file a written statement within thirty days, and the trial court was requested to dispose of the suit expeditiously.
Harish Tandon, J.
1. The concurrent findings of facts are sought to be challenged in this revisional application by one of the defendants in a suit for recovery of possession upon revocation of license. It would appear from the ex parte decree passed in Title Suit No. 126 of 2009 that the said suit was instituted by the plaintiff/opposite party claiming himself to be the owner on the basis of a registered deed of sale dated 22nd November, 2006. It is alleged that the petitioner being the defendant No. 1 was acquainted with the plaintiff/opposite party and requested for a temporary accommodation in the subject property for a period of three years. The permission to occupy was granted to the petitioner but he failed and neglected to hand over the possession after the expiration of the aforesaid period. It is further alleged that the petitioner has given possession of the suit property to the other defendants and is collecting rent from them. The license was subsequently revoked but despite the same, the petitioner failed and neglected to vacate and hand over the suit property. The said suit was decreed ex parte on 14th January, 2010 with the categorical finding that the summons were served on 16.09.2009 as the acknowledgment due card returned with the postal remark "refused". The petitioner thereafter filed an application under Order 9 Rule 13 of the Code of Civil Procedure, which gave rise to registration of Miscellaneous Case No. 19 of 2010 before the learned Civil Judge (Junior Division) 2nd Court, Howrah for setting aside the said ex parte decree alleging that the summons were never served upon him. It is alleged in the said application that the suit property originally belonged to one Eekatannessa who during her lifetime transferred the same to her grandson namely Golam Naksaben Molla by executing a deed of gift. The said donee after independence is mostly residing in Bangladesh and subsequently bequeathed the said property in favour of his nephew, Nurul Alam Molla by executing a wasiyatnama dated 02.06.1976.
2. After the execution of the said wasiyatnama the Golam Naksaben Molla left India forever and started living in Bangladesh where he died long before 2006. It is, thus alleged that the father of the petitioner became the absolute owner of the suit property and upon his death, it devolved upon his sons and daughters and therefore the petitioner is one of the co-owners in respect thereof.
3. It is further alleged that the petitioner was all along enjoying the suit property by running a partnership business in the name and style of M/s. R.K. Welding Works and is also realizing rent from the other defendants. The summons of the suit was never served upon him and the factum of ex parte decree came to his knowledge on 21st July, 2010 when unknown persons claiming themselves to be the process server approached the suit premises and asked for delivery of possession. The petitioner further alleged that subsequently an enquiry was made through his advocate and came to know that the said suit proceeded ex parte and the writ of possession was issued to the process server in Title Execution Case No. 12 of 2010 filed by the plaintiff/opposite party. After inspecting the record, the petitioner finds that the plaintiff has wrongly claimed his right, title and interest in the suit property on the basis of the impugned deed of sale and have also managed the service of summons in collusion and conspiracy with the process server and the postal peon.
4. The plaintiff/opposite party denied the aforesaid allegations and stated that the summons were duly served upon the petitioner and the Court therefore did not commit any error in proceeding with the suit ex parte.
5. Undisputedly, the process server as well as the postal peon was examined by the plaintiff/opposite party and their deposition would be considered later. The Trial Court dismissed the said application filed by the plaintiff holding that the summons were properly served upon
