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2005 Supreme(Gau) 431
IN THE HIGH COURT OF GAUHATI (SHILLONG BENCH)
Anima Hazarika, J.
Til Bahadur Konwar – Appellants
Vs.
Dilu Sahu – Respondent
FAO No. 5 (SH) of 2004
Decided On: 03.06.2005
For Appellant/Petitioner/Plaintiff: C.P. Upadhya, Adv.
For Respondents/Defendant: V.K. Jindal and L. Lyngdoh, Advs.
The main legal point established in the judgment is the requirement to prove the validity of the service of summons and the sufficiency of cause for setting aside an ex-parte judgment.
Headnote:
Probate - Validity of Service of Summons - Order 9 Rule 13, Order 5 Rule 15 of the Code of Civil Procedure - 20.3002- C.R. put up on call. Seen the judgment and order (oral) of the Hon'ble Gauhati High Court in L.P.A. No. 14 of 1993 in F.A. No. 18/89 wherein the Hon'ble Division Bench of the Hon'ble Chief Justice Shri N.C. Jain and Hon'ble Justice D. Biswas has directed in the said judgment that this Court to proceed with the case in hand and to issue notice to the parties informing them of the same. Accordingly, as directed, let notice be issued to the parties and fix next date for appearance. Fix 23.4,02 for appearance. 23.4.02- Petitioner has entered appearance through lawyer Shri V.K. Jindal, Sr. Advocate assisted by Shri L. Lyngdoh, Advocate. No. report of the notice issued upon the objector about service report. Fix 8.5.02 for S/R 27.5.02- Petitioner present. No. report on the notice issued upon objector. Petitioner to take fresh steps for service. Fix 11.6.02 for S/R. 11.6.02- None appeared. No service report, await service report. Fix 26.6.02 for S/R 26.6.02- Appellant filed Hazira, but not present on call. No service report. Fix 12.7.02 for S/R 12.7.02- Appellant filed Hazira, but not present on call. No service report. Let Anr. notice from the court be issued upon the Respondent. Fix 16.8.02 for report. 16.8.02- Petitioner is present through counsel Shri V.K. Jindal, Sr. Advocate. It is seen that notice served upon the objector has been duly received and a report to that effect has also seen. However the objector has not appeared in court today. Let Anr. chance be given to the objector to appear in court. Fix 30.8.02 for appearance. 30.8.02- Petitioner file Hazira. The objector/opp party has not yet made any appearance inspite of receipt of notice. In the events this matter will proceed ex-parte. Fix 18.9.02 for ex-parte hearing. Accordingly the probate Misc. Case No. 28(T) of 1981 proceeded ex parte. The learned trial Court vide judgment and order dated 21.4.2003 has decided the probate case, whereby the will of Kul Bahadur Konwar in which the testator has bequeathed his land and property to the opposite party has accordingly probated. The present Petitioner on coming to the said facts of granting probate in favour of the opposite party in probated Misc. case No. 28(T) 1981 has filed an application under Order 9 Rule 13 of the Code of Civil Procedure on 27.4.2004 for setting aside the judgment and order dated 21.4.2003 passed ex-parte. In the said application under order 9 Rule 13 of the Code, the Petitioner has averred the following statements supported by an affidavit. On receipt of the said application a case has been registered being Misc. Application No. 5(T) 2004 in probate Misc. case 28(T) 81. The categorical averment made in the said application would show that the notice has not been served on the Petitioner. The said application has been filed supported by an affidavit. The relevant portion of the statement is quoted hereunder: Paragraph 11- That, thereafter on 12th April, 2004, to his utter shock and surprise, your Petitioner learnt that this Hon'ble Court had already passed order and judgment ex-parte against your Petitioner holding that your Petitioner failed to appear before the Hon'ble Court despite receipt of notice. Paragraph 12- That your Petitioner respectfully submits that no notice whatsoever regarding the Fresh Trial of the Probate Case in terms of the order of the Hon'ble High Court was ever received by your Petitioner. It was only when your Petitioner came to know about the fate of the L.P.A. he made enquiries and found that this Court has passed judgment and order ex-parte against your Petitioner holding that your Petitioner had failed to appear before the court despite receipt of notice. In this connection your Petitioner begs to submit that he has spent all his life's earning in defending his interest and had he received the notice he would have certainly appeared before this Hon'ble Court. Paragraph 13- That further the lawyers engaged by your Petitioner at Shillong to conduct the probate case did not inform your Petitioner that the case has been remanded to this Hon'ble Court. Paragraph 14- That unless the ex-parte judgment and order dated 21.4.03 is vacated and the operation of the same is stayed, your Petitioner shall suffer irreparable loss and he would be denied justice. Paragraph 15- That it is in the interest of justice, equity and fairplay that the judgment and order dated 21.4.2003 be vacated and the Probate case be tried in terms of the judgment and order of the Hon'ble High Court. Paragraph 16-That this petition is filed most bonafide and in the interest of justice. The material evident on record would show that the learned trial Court issued notice on the opposite party and the opposite party has filed an objection contending inter alia, that the petition made under Order 9 Rule 13 is misconceived. She has further averred that the notice was duly served on him, but he did not contested the case and the learned court has no other option but to proceed with the case ex-parte vide order dated 23.4.2003 and the judgment and order dated 21.4.2003 has been rightly passed granting probate in her favour. She has further raised the question of limitation in filing the instant plication and the affidavit sworn by the Petitioner verifying the statements in paragraphs 1 to 13 to the best of his information, which is hit by Order 19 Rule 3 to the Code of Civil Procedure and there being no other evidence or material except the affidavit, the petition is required to be dismissed. The learned court below took the Misc. Case No. 5(T) 2004 in probate case No. 28(T) of 81 on 23.9.2004 for hearing. The argument advanced by the parties would reveal, that the question of limitation, sufficient cause and notice whether served on the Petitioner are the questions raised before the learned court below. After hearing the parties the learned trial Court has taken the point as to whether the notice served upon the wife of the Petitioner can be construed as valid. The learned trial Court has quoted Order 9 Rule 13 and has referred Order 5 Rule 15 of the Code of Civil Procedure and dealt with the only question of summons received by Swaraswati and came to a finding that there is no reason to doubt that Smti. Swaraswati has received the notice on Petitioner's behalf, identifying herself as the wife of the Petitioner and therefore, holding that the Petitioner has failed to satisfy the court that the summon was not duly served and rejected the petition and hence this application under Rule 36 of the Administration of Justice and Police in the East Khasi Hills District (Adminsitrered Areas), Shillong before this Court being FAO No. 5 (SH) 2004 praying for setting aside the order dated 23.9.2004 passed in Civil Misc. Application No. 5(T) 2004 by the learned Additional Deputy Commissioner, Shillong.
Fact of the Case:
The case involves a probate case arising from a will executed by late Kul Bahadur Konwar in favor of the opposite party, who was not related to the deceased. The probate was granted ex-parte, and the appellant filed an application for cancellation of probate, alleging fraud and collusion. The case went through multiple hearings and remands, leading to the probate being granted in favor of the opposite party. The appellant then filed an application under Order 9 Rule 13 of the Code of Civil Procedure to set aside the ex-parte judgment, claiming that the notice had not been served on him.
Finding of the Court:
The court found that the notice served on the appellant's wife was valid and rejected the petition to set aside the ex-parte judgment.
Issues: The issues involved the validity of the service of summons and the sufficiency of cause for setting aside the ex-parte judgment.
Ratio Decidendi: The court held that the notice served on the appellant's wife was valid and that the appellant had failed to satisfy the court that the summon was not duly served.
Final Decision: The court set aside the order passed in the application to set aside the ex-parte judgment and directed the case to be decided in accordance with the law.
A. Hazarika, J.
1. That the short question that requires for determination in this case is as to whether on remand by this Court in L.P.A. No. 14 of 1993 in F.A. No. 18 (SH) 1989, to the trial court, with a direction to proceed with the case after ensuring the presence of the parties has been complied with, if not, whether the learned trial Court is justified in decreeing the Probate Case No. 28(T) of 1981 ex-parte, in favour of the opposite party in the present case and whether the service of summon on Swaraswati wife of Appellant can be construed as sufficient and can be treated as service duly served on the Appellant.
2. In order to determine the said question, the brief facts of the case is required to be narrated. The Probate Case arises out of a will executed by late Kul Bahadur Konwar in favour of the opposite party Smti Dilu Sahu, who was admittedly not related to the said Kul Bahadur Konwar (since deceased). The said Kul Bahadur Konwar died on 23.7.78 and on 28.8.81 an application for probate to the said will was filed before the learned Additional Deputy Commissioner, Shillong. In the said application for granting probate no one was shown as the next of kin of the deceased. Therefore, a general notice was issued and as no objection was filed, the learned court below examined the opposite party Dilu Sahu and two other witnesses and an ex-parte order was passed on 12.10.81 granting probate of the will.
3. Knowing the facts of ex-parte order granting probate of the alleged will, the present Appellant filed an application on 26.2.1982 for cancellation of probate contending inter alia, that the executing of the will used to live with Til Bahadur, present Appellant till his death and late Kul Bahadur was not mentally and physically fit to execute the will since he was addicted to drinks and as such he was suffering off and on in his later part of his life. He further contended that the opposite party in collusion with her husband got the forged will executed and fraudulently and surreptitiously managed to take the ex-parte order of probate, by suppressing the material facts knowing fully well that the Appellant is the brother of Late Kul Bahadur Konwar and therefore prayed for cancellation of the probate.
4. The opposite party has entered appearance and submitted the objection denying the allegations made in the application and prayed for dismissal of the application. The learned court below after hearing the parties rejected the said application which culminated in filing First Appeal before this Court being F.A. No. 18 of 1989. The said First Appeal came up for hearing on various dates and the court delivered the judgment on 16.9.93 and remanded the case after setting aside the judgment impugned in the First Appeal with a direction to consider the entire matter after keeping in view the law regarding competency of a person to execute the will and the manner in which a will has to be attested.
5. Being aggrieved with the aforesaid judgment of remand dated 16.9.93 passed in F.A. No. 18 of 1989, the opposite party (herein) has preferred a Letter Patent Appeal before the Division Bench of this Court being L.P.A. No. 14 of 1993 in F.A. No. 18 of 1989. The said L.P.A. No. 14 of 1993 came up for hearing on 3.4.2001 and the Division Bench of this Court dismissed the appeal with a direction to the learned trial Court to proceed with the case after ensuring the presence of the parties.
6. On remand the learned trial Court received the case record and the relevant orders passed by the Court below are quoted hereunder:
20.3002- C.R. put up on call. Seen the judgment and order (oral) of the Hon'ble Gauhati High Court in L.P.A. No. 14 of 1993 in F.A. No. 18/89 wherein the Hon'ble Division Bench of the Hon'ble Chief Justice Shri N.C. Jain and Hon'ble Justice D. Biswas has directed in the said judgment that this Court to proceed with the case in hand and to issue notice to the parties informing them of the same.
Accordingly, as directed
