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2020 Supreme(MP) 386
IN THE HIGH COURT OF JUDICATUTE AT JABALPUR (M.P.)
NANDITA DUBEY, J.
Smt. Saroj Dubey and others – Appellants
Versus
Janardan Prasad and others – Respondents
M.A. No.1559 of 2014
Decided on : 06-03-2020
Advocate Appeared:
For the Appellant : Ms. Sudipta Choubey, adv
For the Respondent: Shri Bhupendra Mishra, adv
The main legal point established in the judgment is the application of Order 9 Rule 13 of the C.P.C. for setting aside an ex-parte decree, and the court's emphasis on the defendant's honest and sincere intention to remain present when the suit was called on for hearing.
Headnote:
Order 9 Rule 13 - Setting Aside Ex-Parte Decree - C.P.C. - [Order 9 Rule 13] - The court discussed the provisions of Order 9 Rule 13 of the C.P.C. which allows setting aside an ex-parte decree if the party satisfies the Court that summons was not duly served or he was prevented by sufficient cause from appearing when the suit was called for hearing. The court emphasized that the test for determining the application under Order 9 Rule 13 CPC is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. The court also highlighted the presumption of service of a notice sent by registered post and the rebuttable nature of this presumption.
Fact of the Case:
The defendants filed an application under Order 9 Rule 13 of the C.P.C. to set aside an ex-parte decree, contending that they had no knowledge about the suit filed by the plaintiff or about the counsel engaged by him. The defendants claimed that they acquired knowledge about the judgment and decree after receiving a certified copy and filed the application within 30 days of such knowledge.
Finding of the Court:
The court rejected the application, stating that the defendants were aware of the suit filed by the plaintiff and the exparte decree, as evidenced by the notices issued to them and the publication in a widely circulated newspaper. The court emphasized the presumption of service of a notice sent by registered post and the effective service by publication in a widely circulated newspaper.
Issues: The main issue was whether the defendants were entitled to set aside the ex-parte decree under Order 9 Rule 13 of the C.P.C. based on their claim of lack of knowledge about the suit and the decree.
Ratio Decidendi: The court emphasized that the test for setting aside an ex-parte decree under Order 9 Rule 13 CPC is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. The court also highlighted the presumption of service of a notice sent by registered post and the rebuttable nature of this presumption.
Final Decision: The court dismissed the appeal, finding that the defendants were aware of the suit and the exparte decree, and therefore, not entitled to set aside the decree under Order 9 Rule 13 of the C.P.C.
ORDER :
Present appeal by the defendants is filed against the order dated 06.05.2014, passed by Second Additional District Judge, Rewa in MJC No.96/2011, whereby their application under Order 9 Rule 13 of the C.P.C. has been rejected.
2. Original plaintiff Guruprasad filed a suit for declaration and permanent injunction against defendants No.2 and 3. Defendants filed their written statement refuting the allegations in the plaint. In addition, counter claim was also filed, inter alia contending that defendants No.2 and 3 are the owner of house No.41/21, and plaintiff was a tenant in the suit house. It was further alleged that Satyanarayan, father of defendants No.2 and 3 and plaintiff were real brothers. Satyanarayan died in the year 1988. As defendant No.2 was working in the PWD department at Shahdol, he gave one portion of the suit house on rent at the rate of Rs.75/-per month to his uncle Guruprasad. However, Guruprasad stopped paying rent from 04.07.2000. A registered notice, terminating the tenancy and vacating the house premises was, therefore, sent to the plaintiff. The plaintiff, however, instead of vacating the premises, denied the title of defendant No.2. On enquiry, defendants No.2 and 3 came to know that plaintiff fraudulently got his name mutated in the house, showing Satyanarayan having died, issue less.
3. Plaintiff Guruprasad died during the pendency of the suit. His legal representatives did not pursue the suit, hence the same dismissed. The counter claim filed by defendants No.2 and 3 was partly allowed by the judgment and decree dated 02.12.2016. It was directed that legal representatives of plaintiff and defendant No.1 will deliver the peaceful possession of suit house to defendants No.2 and 3, within a period of two months. It was further directed that the legal representatives of plaintiff and defendant No.1 will also pay compensation at the rate of Rs.75/-per month from the date of filing of suit till the possession is delivered.
4. The appellants filed an application under Order 9 Rule 13 of the C.P.C. for setting aside the ex-parte decree, contending inter-alia that they had no knowledge about the suit filed by Guruprasad or about the counsel engaged by him. Guruprasad died in September, 2004, and after his death, his widow, appellant No.1, started living with her son in Satna. Nephew of appellant No.1, practicing at Rewa Court heard about the mutation of late Guruprasad's land in favour of Pratap Narayan and informed her aunt, who applied for certified copy of the khasra on 14.07.2011, which was received on 04.11.2011. After receiving the certified copy of khasra on 04.11.2011, they came to know that mutation was done on the basis of ex-parte judgment and decree dated 02.12.2006, passed in C.S. No.49-A/2003. Hence, the application to obtain the certified copy of judgment in C.S. No.49-A2003, was made on 10.11.2011 and the certified copy was received on 21.11.2011. It was further stated that appellants never received the summons and even the paper publication was made in a newspaper, which was not in wide circulation in Rewa district.
5. The learned trial Judge, after considering the pleadings and the evidence on record, rejected the application, as barred by time.
6. It is contended by Ms. Sudipta Choubey, learned counsel appearing for the appellant that the learned Judge has taken a hyper-technical view in dismissing the application. It is argued that the Court has not considered that the appellants acquired the knowledge about the judgment and decree dated 02.12.2006, on 21.11.2011, when they received the certified copy and the application was filed within 30 days of the knowledge of decree, was within time, hence there was no necessity to file an application for condonation of delay.
7. Learned counsel has placed reliance on the case of Bhagmal and others Vs. Kunwarlal and others (2010) 12 SCC 159 and Commissioner, Religious and Charitable Endowments, Bangalore Vs. Kasliyappa Gurujkula Shri Vidya Shala (19
