Chattisgarh High Court

Chameli Bai vs Vimla Bai on 12 August, 2021

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                                                                    NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                   Order Reserved on : 04.08.2021

                     Order Passed on : 12/08/2021

                       W.P.(227) No. 425 of 2020
1.    Chameli Bai, W/o. Manharan, aged about 52 years, R/o. Village
      Patgawa, Tahsil Pendra, District Bilaspur Chhattisgarh.
2.    Manharan, S/o. Jagannath, aged about 55 years, R/o. Village
      Patgawa, Tahsil Pendra, District Bilaspur Chhattisgarh.
                                                           ---- Petitioners
                                 Versus
Vimla Bai, W/o. Kalyan Singh Gond, R/o. Village Patgawa, Tahsil
Pendra, District Bilaspur Chhattisgarh.
                                                         ---- Respondent

For Petitioners                : Mr. Anish Tiwari, Advocate

For Respondent                 : Mr. Hemant Gupta, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant C A V Order

1. This petition under Article 227 of the Constitution of India has been

brought being aggrieved by the order dated 13.02.2019, passed

by the Additional District Judge, Pendra Road in Miscellaneous

Civil Appeal No. 2A/2014, by which the order of the Civil Judge

Class-II, Pendra Road, in M.J.C. No.3A/2011, dated 30.04.2014

has been upheld.

2. Respondent No.1 had filed a civil suit against the petitioners,

which was registered as Civil Suit No.16-A/2008. It is submitted by

the counsel for the petitioners that notices issued to the

petitioners/defendants was not duly served upon him. Copy of the

notice is filed, which shows the seal of Civil Judge Class-II Pendra

Road, Camp Marwahi, which gives impression that the Court

would be sitting in Marwahi. Further the date of hearing is

27.06.2008.Copy of the order-sheet shows that on 27.06.2008, no

sitting of the Court was held either in Pendra Road or in Marwahi.

On 24.06.2008, the orders were passed for issuance of notice to

the defendants and the case was fixed for 14.08.2008 on which

date the order-sheet mentions about the service of the summons

to the petitioners and on that basis, the ex-parte order was

passed. Therefore, it is a clear case of improper service of

summons. The learned trial Court has proceeded to hear the case

and passed ex-parte judgment and decree against the petitioners.

3. It is submitted that the petitioners then filed an application under

Order 9 Rule 13 of C.P.C., before the trial Court for setting-aside

the ex-parte judgment and decree against them. But the same has

been dismissed by the trial Court vide order dated 30.04.2014.

The appeal preferred has also been dismissed by the impugned

order dated 13.02.2019. Therefore, the impugned orders are

erroneous and against the provisions of law, which are

unsustainable. Reliance has been placed on the judgment of

Supreme Court in case of Sushil Kumar Sabharwal Vs.

Gurpreet Singh & Ors., reported in AIR 2002 SC 2370 and in

case of Bhivchandra Shankar More Vs. Balu Ganga Ram More

& Ors., reported in reported in (2019) 6 SCC 387 and in case of

Bhagmal & Ors. Vs. Kunwar Lal & Ors., reported in AIR 2010

SC 2991. It is prayed that the impugned order be set-aside and

the petitioners be granted relief.

4. Learned counsel for the respondent opposes the petition and the

submissions made in this respect. It is submitted that no error has

been committed by the learned trial Court as well as by the

appellate Court in dismissing the application and the appeal of the

petitioners. The enquiry was made on the application under Order

9 Rule 13 of C.P.C., in which the petitioner No.1 has admitted in

cross-examination, that she had received the notice and she was

informed by the Court peon that the hearing will be in the Court at

Pendra Road, and she was also informed about the date of

hearing. Therefore, there is clear evidence that the services of

summons had been proper upon the petitioners and they have

deliberately avoided giving appearance before the Court on the

given date. On this basis, there was no ground present to entertain

and allow the application filed by the petitioners under Order 9

Rule 13 of C.P.C. The petitioners have the only remedy available

to file appeal against the impugned judgment and decree. The

petition is without any substance, which may be dismissed.

5. I have heard the learned counsel for the parties and perused the

documents placed on record.

6. Firstly dealing with the service upon the petitioners, the evidence

is present to show that the service has been made upon them.

The second objection of the petitioners that the seal affixed in

notice showed the place of sitting as camp Marwahi and not

Pendra Road. Regarding which, admission of the petitioner in her

statement in inquiry before the lower Court that she was informed

by the Court peon that sitting will be held in the Court at Pendra

Road and and there was no hint that sitting was to held in

Marwahi. On this basis, it can be said that the petitioners were not

miss-informed, regarding the place of sitting of the Court. Although

the seal affixed of the Court mentions of both the places i.e.

Pendraroad and Camp Marwahi. Hence, this ground of the

petitioners was also not entertainable, which has been rightly not

accepted by the trial Court and the appellate Court.

7. The third ground regarding the date holds ground, because

certified copy of the notice mentions that the date of hearing shall

be 27.06.2008. The admission that have been made by the

petitioners in cross-examination in the enquiry statement in this

respect that she was informed that the date of hearing is

27.06.2008. On perusal of the record of the Civil Suit

No.16-A/2008, the order-sheet shows that on the date of hearing

was fixed for 24.06.2008, the learned trial Court ordered for

issuance of notice to the respondents and the next date of hearing

was fixed for 14.08.2008. Therefore, there was no such hearing

fixed on 27.06.2008, regarding which notice was issued and

served upon the petitioners. This is major mistake committed in

issuance of notice and on this basis it can be said that the

petitioners were misinformed regarding the date of hearing.

8. Order 9 Rule 13 C.P.C. provides that the defendant who has ex-

parte decree against him has to satisfy the Court, that the

summons was not duly served upon him or that he was prevented

by any sufficient cause from appearing in the Court. The instant

case falls in the first category and it can be held that the summons

was not duly served upon the petitioners, because the petitioners

were not given the correct information, regarding the date of

hearing. As on the date of hearing mentioned in the notice, the

civil suit has not listed before the Court, therefore, the petitioners

have proper ground available in their favour and on this basis, the

judgment and decree of the trial Court should have been set-

aside.

9. Hence, in view of the aforesaid discussion, it is held that the order

of the learned trial Court 30.04.2014 and the judgment of the

appellate Court dated 13.02.2019 both suffer from grave infirmity,

which are liable to be set-aside.

10. Accordingly, this petition is allowed. The impugned orders dated

30.04.2014, passed by the trial Court and the order dated

13.02.2019, passed by the appellate Court are set-aside and the

application of the petitioners filed under Order 9 Rule 13 of C.P.C.

is hereby allowed. The parties are directed to give their

appearance before the trial Court on 06.09.2021.