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2019 Supreme(MP) 286
IN THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
ROHIT ARYA, J.
M/s. Indore Holding Private Limited and others - Appellants
Versus
Chimanlal and others - Respondents
Miscellaneous Appeal No.2911 of 2010
Decided On : 25-01-2019
For the Appellants :Shri B.I. Mehta, Sr. Advocate assisted by Shri J.B. Mehta, Advocate.
For the Respondents:Shri G.S. Yadav, Advocate, Shri V.K. Jain, Sr. Advocate assisted by Shri Abhishay Jain, Advocate, Shri Pushyamitra Bharava, Advocate.
The main legal point established in the judgment is the necessity of justifiable reasons for resorting to substituted service and the requirement of recording reasons for publication of notice in the newspaper under Order 5 rule 20 CPC.
Headnote:
Order 43 Rule 1 CPC - Civil Suit - Madhya Pradesh Land Revenue Code, 1959 - Section 190 - The court discussed the provisions under section 190 of the Madhya Pradesh Land Revenue Code, 1959 and the procedural aspects of Order 5 rule 17 and rule 20 CPC. The court highlighted the necessity of justifiable reasons for resorting to substituted service and the requirement of recording reasons for publication of notice in the newspaper under Order 5 rule 20 CPC.
Fact of the Case:
The plaintiffs filed a civil suit for declaration and permanent injunction regarding a land against the defendants. The suit was dismissed in default, and the plaintiffs filed an application for restoration. The process server's attempts to serve notice on the defendants were unsuccessful, and the trial court ordered for publication of notice in a newspaper. The defendants were proceeded ex parte, and an ex parte judgment and decree was passed. The defendants filed an application under Order 9 rule 13 CPC for setting aside the ex parte judgment and decree.
Finding of the Court:
The court found that the service of summons on the defendants was not complete, and the ex parte judgment and decree was prejudicial to the rights of the defendants. The court set aside the ex parte judgment and decree and directed the trial court to restore the suit to its original number and proceed to decide the suit after hearing all parties.
Issues: The issues included the validity of the publication of notice in the newspaper under Order 5 rule 20 CPC, the refusal or avoidance of service by the defendants, and the trial court's compliance with the procedural requirements of Order 5 rule 17 and rule 20 CPC.
Ratio Decidendi: The court held that there was no compliance with Order 5 rule 17 CPC, and the trial court had ordered for substituted service through publication without recording justifiable reasons as required by law. The court emphasized the necessity of justifiable reasons for resorting to substituted service and the requirement of recording reasons for publication of notice in the newspaper under Order 5 rule 20 CPC.
Final Decision: The appeal was allowed, and the ex parte judgment and decree were set aside. The trial court was directed to restore the suit to its original number and proceed to decide the suit after hearing all parties.
ORDER :
Rohit Arya, J.
This miscellaneous appeal by defendants No.4 to 9 under Order 43 rule 1 CPC is directed against the order dated 18/08/2010 passed in Civil Miscellaneous Case No.71/09 dismissing the application filed under Order 9 rule 13 CPC by the Fifth Additional District Judge, Indore.
2. Facts necessary and relevant for the purpose of disposal of this appeal lie in narrow compass: A civil suit No.83A/1989 was filed by the respondents No.1 to 5 – the plaintiffs for declaration and permanent injunction on 30/08/1988.as regards the land admeasuring 1.290 Acrs situated in Village Khajarana, tehsil and district Indore (for short 'the suit land') against the present appellants and the State of Madhya Prdesh, The Tehsildar, Indore as well as defendant No.3 Chaturbhuj inter alia contending that defendant No.3 has leased out the suit land on 31/03/1975 to the plaintiffs for five years at the annual rent of Rs.1,000/-and delivered possession of the suit land. Therefore, by force of the provisions under section 190 of the Madhya Pradesh Land Revenue Code, 1959 (for short, 'the Code'), the plaintiffs have acquired the bhumi swami rights. Hence, the sale deed executed by the defendant No.3 in favour of the defendants No.4 to 9 in respect of the suit land to be declared as null and void. It is further prayed for permanent injunction restraining the defendants not to interfere with the possession of the plaintiffs over the suit land be issued.
3. Defendants No.3 and Defendants No.4 to 9 (appellants) filed separate written statements.
4. Defendant No.3 denied the plaint allegations and supported the sale deed dated 10/03/1988 with further contention that the suit is barred by the principles of res judicata as on similar facts and grounds earlier suit filed by the plaintiffs has been dismissed.
5. Defendants No.4 to 9 also denied the plaint allegations and contends that the plaint averments since are not only inconsistent but, also mutually destructive, viz., plea of rights on the basis of the agreement over the suit land, tenant, by operation of law and by adverse possession cannot go together for the relief claimed therein. Hence, the suit deserves to be dismissed.
6. The suit was dismissed in default on 27/07/1999 in the presence of counsel for the appellants. Thereafter, the plaintiffs have filed an application under Order 9 rule 9 CPC for restoration of the suit to its original number. The case was registered as MJC No.21/1999 and the same was allowed on 09/10/2003 but, without notice to the defendants. Neither the defendants No.4 to 9 nor the legal heirs of the defendant No.3 were noticed after restoration of the suit. Thereafter, the case was fixed on various dates but, the process fee was not filed by the respondents No.1 to 5 (the plaintiffs). On 29/01/2004, the process fee was paid for notice to the appellants and the same was issued on their registered office situated at 19/2, South Tukoganj, Indore fixing the date for appearance on 08/03/2004. The sole attempt made by the process server to serve notice upon the defendants No.4 to 9 did not culminate into service of notice instead, the process server submitted two mutually conflicting reports, viz., (i) at the given address, the defendant – company was not found; (ii) there was a chowkidar who said that the owners of the company were out of station and said that unless, the owners permit him to take notice, he cannot accept the notice. The process server made an endorsement on the notice dated 29-01-2004 issued to RMG Holding Pvt. Ltd. Office: 19/2 South Tukoganj, Indore:
**fjiksVZ 17@2@04
Jheku th 'kiFk ij fjiksVZ djrk gw¡ dh uksfVl ds fy[ks irs ij ryk'k fd;k ogk bl uke ls dksbZ dEiuh ugh gSA pkSdhnkj us ekSf[kd tkghj fd;k vius ekfyd ls Qksu ij ckr djus ds ckn ekSds ij xokg dh rkfeyh okn uksfVl Jhekuth dh lsok esa okil is'k gSA**
As regards the notice of even date issued to M/s Tekdiwal Investment Pvt. Ltd. Office: 19/2 South Tukoganj, Indore; following endorsement was made:
**f
