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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW)
SANGEETA CHANDRA, J.
Subhash Chandra Chaturvedi – Appellant
Versus
IVth Addl.Session Judge/Spl.Judge/E.C. Act Lko. And Ors. – Respondents
Matters Under Article 227 No. 34234 of 2019
Decided on : 28-09-2022
The High Court, exercising its extraordinary jurisdiction under Article 227 of the Constitution of India, cannot reappreciate the evidence or substitute its subjective opinion in place of the findings of the inferior Courts or Tribunals. The jurisdiction is exercised to keep the subordinate Courts within the bounds of their authority and to ensure that they do what their duty requires and that they do it in a legal manner. The High Court shall not interfere with the findings of fact recorded by the Courts below unless there is no evidence to support the findings or the findings are totally perverse.
Fact of the Case:
The petitioner filed a petition under Article 227 of the Constitution of India challenging the ex-parte decree passed against him in a suit for eviction and damages, the order rejecting his application to set aside the ex-parte decree, and the order passed in appeal against the rejection order. The petitioner claimed that the summons were not duly served upon him and that the publication of the notice in a newspaper that was not widely circulated in his locality did not comply with the provisions of Order V Rule 20 of the Code of Civil Procedure (CPC). The private respondents, on the other hand, contended that the petitioner had knowledge of the pendency of the suit and had sufficient time to appear and answer the plaintiff's claim.
Finding of the Court:
The High Court held that the petitioner had failed to establish that the summons were not duly served upon him or that he did not have knowledge of the pendency of the suit. The Court noted that the petitioner had admitted in his Replication filed in a related suit that he had knowledge of the suit in question. The Court also found that the publication of the notice in the newspaper, though not widely circulated in the petitioner's locality, complied with the provisions of Order V Rule 20 CPC. The Court further held that the petitioner had not approached the Trial Court immediately after receiving the Written Statement in the related suit, which mentioned the pendency of the suit in question, and had not made an honest effort to file a Written Statement therein. The Court concluded that the petitioner had sufficient notice of the pendency of the suit and had sufficient time to appear and answer the plaintiff's claim.
Issues: 1. Whether the summons were duly served upon the petitioner? 2. Whether the petitioner had knowledge of the pendency of the suit? 3. Whether the publication of the notice in the newspaper complied with the provisions of Order V Rule 20 CPC?
Ratio Decidendi: The High Court held that the petitioner had failed to establish that the summons were not duly served upon him or that he did not have knowledge of the pendency of the suit. The Court noted that the petitioner had admitted in his Replication filed in a related suit that he had knowledge of the suit in question. The Court also found that the publication of the notice in the newspaper, though not widely circulated in the petitioner's locality, complied with the provisions of Order V Rule 20 CPC. The Court further held that the petitioner had not approached the Trial Court immediately after receiving the Written Statement in the related suit, which mentioned the pendency of the suit in question, and had not made an honest effort to file a Written Statement therein. The Court concluded that the petitioner had sufficient notice of the pendency of the suit and had sufficient time to appear and answer the plaintiff's claim.
Final Decision: The petition was dismissed.
JUDGMENT :
1. This petition under Article 227 has been filed challenging the order dated 22 May 2006 which is an ex-parte decree in Regular Suit No.294 of 2013: Smt. Shashi Mishra and others versus Subhash Chandra Chaturvedi, and also the Order passed on application under Order IX Rule 13 dated 27.05.2009 rejecting the same, and the order passed in Appeal thereafter dated 27.11.2019; with a further prayer directing the Trial Court not to proceed in Execution Case No. 15/2007.
2. It is the case of the petitioner in his petition that his father was residing in Khasra No. 2188/2/3 Village Kanausi by raising a hut over it. Later on the petitioner built a two room house in 1986 and when the land came under Nagar Nigam it was allotted House No. 561/234 New Sindhu Nagar, P.S. Krishnanagar, Lucknow and he has been paying house tax to the Nagar Nigam since August 1986. One Rajendra Malviya filed Regular Suit No.49/1994 against Om Prakash Mishra the predecessor in interest of the private respondents, for possession and demolition, alleging therein that land of Khasra No. 2188/2/3 Village Kanausi belonged to him, and that Om Prakash Mishra had forcibly built his house over it. During the pendency of the Suit Rajendra Malviya executed a sale deed of the land in dispute in favour of Om Prakash Mishra on 09.11.1995. Consequently, the Suit was dismissed on 06.02.2009.
3. Om Prakash Mishra constructed a house adjacent to the house of the petitioner and the Nagar Nigam allotted House No. 561/232 in New Sindhu Nagar, PS Krishna Nagar, Lucknow. Om Prakash Mishra and others started creating disturbance in the peaceful possession of the petitioner over his House No. 561/234 and therefore the petitioner filed Regular Suit No. 144/1999 in the Court of Civil Judge (Havali) Lucknow. When Om Prakash Mishra could not succeed in his design, Shashi Misra his daughter in law and his sons filed Regular Suit No. 294/2003 praying for a decree of eviction and damages to the tune of Rs.32,000/-with interest on 28.07.2003, in the Court of Civil Judge (Senior Division) Malihabad, Lucknow. In the said Suit the petitioner was arrayed as a defendant and a wrong house number was mentioned namely House No. 561/232 – A , New Sindhu Nagar. The opposite parties managed to get an ex-parte decree on 22.05.2006 on the ground that summons were served on the defendant through publication and he had not appeared nor filed his written statement.
4. On coming to know of the ex-parte decree the petitioner filed paper number 60 C Application under Order IX Rule 13 CPC along with affidavit for setting aside exparte-decree dated 22.05.2006. In the affidavit the petitioner stated that he was the owner of House No. 561/234 New Sindhu Nagar, Lucknow and that the Respondents with a view to usurp the house had mentioned the wrong address and no service of summons was affected upon him. The petitioner had never refused to take notice/summons and if there was any evidence of receiving such notice the same was forged. The newspaper in which allegedly the notice was published was also not circulated in the area he resided.
5. The Learned Trial Court rejected the application on the ground that knowledge of the Suit was derived by the petitioner through another Suit and on such presumption treated notice to be served on the petitioner.
6. It has been submitted that Rule 17, Rule 19-A and Rule 20 of Order V CPC were violated.
7. Against the order 27.05.2009 the petitioner preferred Miscellaneous Civil Appeal No. 81 of 2009: Subhash Chandra Chaturvedi versus Shashi Misra and others, in the Court of District Judge which was also rejected on 7.11.2009 by the Appellate Court. The Appellate Court observed that under Proviso to Order IX Rule 13 C.P.C., since the petitioner had knowledge about the pendency of Regular Suit No. 294 of 2003 in the Court of Civil Judge (Senior Division), Malihabad, Lucknow, the ex-parte decree could not be set aside even on the ground of any irregularity in the service of summon
The High Court, exercising its extraordinary jurisdiction under Article 227 of the Constitution of India, cannot reappreciate the evidence or substitute its subjective opinion in place of the finding....
Proper service of notice is essential for ex parte decrees; without sufficient evidence of notification, such decrees can be set aside under natural justice principles.
The Court emphasized the importance of due consideration in ordering substituted service and the need for clear knowledge of the particular decree sought to be set aside.
The court emphasized the necessity of effective service of summons and adherence to procedural mandates in civil proceedings.
The service of notice to any adult family member, including a female, is valid despite local amendments restricting it to male members, thus upholding the decree passed. Refusal to appear without suf....
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