Misc. (J) Case No. 591/2013
24.03.2015
Both the sides are represented. Today is the date fixed
for final order on this case. This case had arisen from
petition no. 4174/13 filed by the petitioner Sri Deo Chand
Sarda against the opposite party Smti. Kaushalya Devi @
Smti. Koshila Devi under Order 9 Rule 13 read with
Section 151 of the CPC for setting aside the ex parte
judgment and decree dated 17.07.2013 passed in Title
Suit No. 142/2010.
The aforesaid title suit was filed by the plaintiff/opposite
party against two defendants namely Deo Chand Sarda
(petitioner) and his son Subash Sarda. The suit proceeded
ex parte against the defendant no. 1/petitioner vide order
dated 05.12.2012. It appears from the order dated
05.12.2012 that summons sent to the defendant no. 1 by
registered post had returned with remark of refusal and
as such service of summons was presumed in respect of
the defendant no. 1. The name of the defendant no. 2
was struck off vide order dated 28.02.2013 as because
the plaintiff had informed the Court that the defendant
no. 2 has expired leaving behind the defendant no. 1 as
his sole legal heir.
Coming back to the instant case, the petitioner has stated
in the petition inter alia that he is the resident of Sardon
Ka Moholla (Bas), Deshnoke, district Bikanar, Rajasthan.
In the year 2000 the opposite party had approached the
petitioner and his deceased son for selling 550 sq ft.
room/shop at first floor of a building named “Purbe
Complex” situated at Motilal Nehru Road in Guwahati. The
opposite party took large amount of money as advances
Misc. (J) Case No. 591/2013
from the petitioner and his son (since deceased) against
the said room/shop, but in spite of their repeated
requests the opposite party neither gave receipts nor
came up with promised sale (ownership) deed. After the
sudden and tragic death of his son i.e. the defendant no.
2 on 27.10.2011, the petitioner came down to Guwahati
in the first week of August 2013 for the treatment of his
ears at GNRC on 08.08.2013 and met the opposite party
for ownership deed, but the opposite party refused the
same by saying that she had got an ex parte judgment
and decree for eviction and recovery of arrear rent
against the petitioner from this Court on 17.07.2013.
Having come to know about the instant suit, the
petitioner obtained certified copies of the ex parte
judgment and decree, plaint and a few of last orders
along with the report of the process server. The petitioner
states that prior to 14.08.2013 he had no knowledge
about the pendency of the aforesaid suit as because
neither he nor his son (since deceased) had received any
summons from this Court. The opposite party with a mala
fide intention succeeded to misguide this Court to
proceed ex parte against the petitioner on presumption of
service of summons on the basis of the sealed postal
articles received back with notes of the Postal Department
“out of station deposit for 6 days” and “addressee
expired”. The petitioner states that besides him, his
deceased son i.e. defendant no. 2 has other legal
representatives who have not been substituted in Title
Suit No. 142/2010. The petitioner states that the
endorsement of the Postal Department made on the
sealed envelope makes it clear that summons was never
received by him nor he did refuse to accept the summons
Misc. (J) Case No. 591/2013
as reflected in the order dated 05.12.2012. Hence the
instant petition.
The opposite party filed written objection and stated inter
alia that the petitioner is the resident of Janiganj Bazar,
Silchar, district Cachar. The registered envelope along
with A/D which was sent for service upon the petitioner’s
son had returned with endorsement that the latter has
expired. On 03.02.2014, the petitioner through his
counsel had filed petition no. 575/2014 stating that he is
under treatment of Dr. D.K. Singh of Mediland, Itkhola,
Silchar, Assam and enclosed medical prescriptions from
which it is apparent that the petitioner is a resident of
Silchar. Further, in the death certificate of his wife,
submitted in the Court on 15.03.2014, the same address
of the petitioner is shown as mentioned in the cause title
of the aforesaid suit. It is further stated that the
petitioner was having knowledge and information about
the aforesaid suit but intentionally and wilfully abstained
from taking steps and it is settled position of law that
communication sent through registered post, properly
addressed
and
postal
charges
prepaid,
raises
a
presumption of having reached the addressee. Further, it
is settled position of law that remarks on the registered
envelope that “out of station deposit for 6 days” are
treated as valid service. Hence, the prayer for dismissal of
this case.
I have considered the respective submissions of both the
sides and gone through the record of Title Suit No.
142/2010.
Misc. (J) Case No. 591/2013
As it appears from the language of Order 9 Rule 13 of the
CPC, the defendant is required to satisfy the Court either
of the following two conditions:
(1) that the summons was not duly served on him;
(2) that he was prevented by any sufficient cause
from appearing when the suit was called on for
hearing.
But in the case at hand, the petitioner has not been able
to satisfy either of the above two conditions. From the
returned envelope of the petitioner/defendant no. 1, lying
in the case record of Title Suit No. 142/2010, it appears
that there are two postal endorsements therein – one
dated 13.10.2012 and another dated 19.10.2012. The
endorsement dated 13.10.2012 is “out of station
deposit
for
6
days”.
The
endorsement
dated
19.10.2012 is “refused”. What it transpires is that as the
addressee i.e. the petitioner was out of station on
13.10.2012, the postal article was again attempted to be
served after six days i.e. on 19.10.2012, but the
petitioner refused to accept the same this time. Based on
this endorsement dated 19.10.2012, presumption of
service was drawn by my learned predecessor-in-office
vide order dated 05.12.2012. The presumption was rightly
drawn in view of the provision contained in Order 5 Rule
9(5). It is pertinent to mention here that apparently the
petitioner is the resident of Silchar as it reveals from the
medical prescriptions of Mediland Hospital & Research
Centre, Itkhola, Silchar and also from the death certificate
of his wife. From the above facts and circumstances, it
becomes transparent that summons was duly served
Misc. (J) Case No. 591/2013
upon the petitioner/defendant no. 1 on 19.10.2012 and
as such he had the knowledge and information about the
suit, but he has not been able to show anything to the
effect that he was prevented by any sufficient cause from
appearing when the suit was called on for hearing. So far
the ground of the deceased defendant no. 2’s having
other legal representatives apart from the petitioner is
concerned, the same is not, to my considered view,
relevant to the scope of Order 9 Rule 13 of the CPC.
Learned advocate for the petitioner relied on a decision of
the Hon’ble Supreme Court reported in (2005) 6 SCC 344,
but said decision is, to my humble view, not applicable to
the instant case on facts.
In the result, the petition no. 4174/13 stands rejected.
The case at hand stands dismissed on contest.
Civil Judge No. 3,
Kamrup (M), Guwahati