Chattisgarh High Court
Sati Bai Nishad vs Santosh Kesari on 25 October, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
M.A. No. 99 of 2019
Reserved on 04.10.2021
Pronounced on 25.10.2021
Sati Bai Nishad Wd/o Late Bhikham Prasad Aged About 34 Years
R/o House No. 330, Ward No. 15, Banbarad Ahiwara, Tahsil
Dhamdha, District Durg Chhattisgarh.
---- Appellant
Versus
1. Santosh Kesari S/o Late Sarjoo Prasad Gupta Aged About 38 Years
R/o Shadapara, Kishan Chowk, Infront Of Durga Mandir, Camp-2,
Bhilai, Tahsil And District Durg Chhattisgarh.
2. State Of Chhattisgarh Through The Collector, Durg District Durg
Chhattisgarh.
---- Respondents
For Appellant: Shri Ganesh Burman, Advocate.
For Respondent No.1: Smt. Aditi Singhvi Agrawal, Advocate.
For State/Respondent No.2: Shri Sanjeev Kumar Agrawal, P. L.
Single Bench:Hon'ble Shri Sanjay S. Agrawal, J
CAV Judgment / Order
1. This appeal has been preferred by the Applicant, who is the widow
of the original Defendant No.1 - Bhikham Prasad, under Order 43 Rule
1(d) of Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC')
questioning the legality and propriety of the order dated 16.08.2019
passed by Fourth Additional District Judge, Durg (C.G.) in M.J.C.
No.167/2019, whereby the learned Court below has refused to set aside
the ex parte judgment and decree dated 31.03.2016 passed in Civil Suit
No.56-A/2014, while rejecting the application filed under Order 9 Rule 13
of CPC. The parties to this appeal shall be referred hereinafter as per their
description before the Court below.
2. According to the learned counsel for the Applicant, the finding of the
Court below rejecting the application filed under Order 9 Rule 13 of CPC
by holding that the Applicant has failed to assign any reason for non
appearance of her husband on 05.11.2015 is apparently contrary to law. It
is contended further that the Applicant's husband was not aware regarding
the institution of the said suit as the summons of it was neither served
upon him nor any counsel was engaged by him. Further contention of him
is that since the reasons assigned in the application was not controverted
by the Plaintiff/Non-applicant No.1, therefore, under such circumstances,
the Court below ought not to have rejected the said application for setting
aside the ex parte judgment and decree dated 31.03.2016 passed in C.S.
No.56-A/2014.
3. On the other hand, learned counsel appearing for Non-applicant
No.1/Plaintiff has supported the order impugned as passed by the Court
below.
4. I have heard learned Counsel for the parties and perused the entire
record carefully.
5. From perusal of the record, it appears that an ex parte judgment
and decree dated 31.03.2016 was passed in a suit for specific
performance of contract instituted by the Plaintiff against the husband of
the Applicant, namely, Bhikham Prasad. In the said suit, the Applicant's
husband was proceeded ex parte on 05.11.2015 and ex parte judgment
and decree was accordingly delivered on 31.03.2016.
6. For setting aside the aforesaid judgment and decree, an application
was made under Order 9 Rule 13 of CPC, wherein it has been alleged by
the Applicant that her husband was informed by the Kotwar of the
concerned village regarding initiation of mutation proceedings which was
pending before the Court of Nayab Tehsildar, Ahiwara with regard to the
property in question bearing Khasra No.1206, 1207/3, 1207/6, 1207/7 and
1207/9 admeasuring 0.40, 0.40, 0.10, 0.18 and 0.19 hectare respectively
owned by him. It is contended further that upon knowing the said fact, her
husband had applied for obtaining the certified copy of the relevant papers
on 15.10.2018 and, in pursuance thereof, it was delivered to her on
22.11.2018 as her husband was died in the mean time in a road accident
on 20.10.2018. Further contention of the Applicant was that since her
husband had never received any notice from the concerned Court nor had
ever engaged any of his counsel to contest the said suit on his behalf,
therefore, the ex parte judgment and decree delivered on 31.03.2016 in
Civil Suit No.56-A/2014 is liable to be set aside.
7. Perusal of the record of the said suit would show that the concerned
trial Court vide its order dated 27.11.2014 had directed to serve the
summons of the suit upon Defendant-Bhikham Prasad through Special
Process Server, while fixing the case for 20.01.2015. However, no service
report as such was found to be placed on record, though was required to
be returned by the Process Server by virtue of the provision prescribed
under Rules known as MP/CG Civil Court Rules, 1961 framed under
Section 23 of the M.P./C.G. Civil Courts Act, 1958. Rule 72 of it is relevant
for the purpose which provides as under:-
72. (1) Every process-server must immediately after
service or non-service writes clearly with his own hand
at the place of service and in the presence of
witnesses (if any), his report of service or non-service
and must also state the date, hour and exact place of
service or non-service.
(2) All returns of service or non-service shall be
made in form (No.II-4) immediately after service or
non-service. The space on the back of the form may
be utilised, where necessary, for continuation of the
entry in column 4. The process-server shall sign at the
foot of each return before making the same over with
the process to the Nazir or Naib-Nazir.
8. According to the aforesaid provision, the report was required to be
placed on record by the Process Server in order to ascertain as to whether
said defendant Bhikham Prasad was served with the summons of the suit
or not as directed by the trial Court vide order dated 27.11.2014. In
absence thereof, it cannot be said that the summons of the suit was duly
served upon him, yet he was proceeded ex parte by the trial Court vide its
order dated 05.11.2015. No doubt, the Court shall always be justified in
proceeding ex parte if it is convinced that the defendant or the opposite
party despite service of the summons and knowledge of the pendency of
the proceedings had chosen to remain absent, but before proceeding ex
parte, the Court must advert itself to the legal requirements as provided
under Order 5 of the CPC which is the complete code regarding service of
the summons on the opposite party. It is, therefore, the bounden duty of
every Court to verify personally that the summons were served in
accordance with law and the party despite service of the summons had
chosen to remain absent, which is, however, found to be completely
missing in the instant matter as observed herein above
9. It appears further that although a duly signed Vakalatnama has
been filed on 06.04.2015 but, the same has, however, found to be filed
without disclosing the number of the said suit. In view thereof, it cannot be
said that the counsel, who has submitted the alleged Vakalatnama, was
authorized by him to contest the suit on his behalf.
10. Be that as it may, the ex parte judgment and decree could be set
aside under Order IX Rule 13 of CPC, if the ingredients provided therein
are fulfilled. The said provision is relevant for the purpose reads as under:-
ORDER IX - Appearance of parties and consequence
of non-appearance .........
xxxx xxxx xxxx xxxx xxxx xxxx
Rule 13. Setting aside decree ex parte against
defendants.- In any case in which a decree is passed ex
parte against a defendant, he may apply to the Court by
which the decree was passed for an order to set it aside;
and if he satisfies the Court that the summons was not
duly served, or that he was prevented by any sufficient
cause from appearing when the suit was called on for
hearing, the Court shall make an order setting aside the
decree as against him upon such terms as to costs,
payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature
that it cannot be set aside as against such defendant only
it may be set aside as against all or any of the other
defendants also:
[Provided further that no Court shall set aside a
decree passed ex parte merely on the ground that there
has been an irregularity in the service of summons, if it is
satisfied that the defendant had notice of the date of
hearing and had sufficient time to appear and answer the
plaintiffs claim.]
[Explanation.- Where there has been an appeal
against a decree passed ex parte under this rule, and the
appeal has been disposed of on any ground other than the
ground that the appellant has withdrawn the appeal, no
application shall lie under this rule for setting aside the ex
parte decree.]
11. According to the aforesaid provision, the Court can set aside an ex
parte decree only on two grounds, firstly, when the summons of the suit
was not duly served and secondly, when he was prevented by sufficient
cause from appearing when the suit was called out. As observed hererin
above, the summons of the suit was neither duly served upon the
Applicant's husband-Bhikham Prasad nor had he authorized any of his
counsel to contest the suit on his behalf.
12. That apart, Defendants No.1 & 2, who were found to be proceeded
ex parte by the trial Court vide its order dated 05.11.2015, but irrespective
of their absence, it reflects from the order sheets commencing with effect
from 05.03.016 upto 31.03.2016, the matter was being adjourned from
time to time as per the request of both the parties. Not only this, the matter
was found to be fixed for the pronouncement of the judgment after hearing
of oral submissions of the parties. It is, therefore, surprising for me that
how the matter could be dealt with in such a manner when the defendants
were already proceeded ex parte on 05.11.2015. The matter was, thus,
found to be conducted by the concerned Presiding Officer (Shri Narayan
Singh) extremely in a casual manner.
13. Be that as it may, despite service of notice of the proceedings
initiated by the Applicant under Order IX Rule 13 of CPC, the Non-
applicants have failed to appear and, therefore, the reasons assigned in
the application, which are duly supported by an affidavit, have, thus, not
been controverted by the Non-applicant. In view thereof, there were no
reasons to disbelieve the contention made by the Applicant.
14. In view of the aforesaid background, the Court below has, therefore,
committed an illegality in dismissing the said application while refusing to
set aside the ex parte judgment and decree dated 31.03.2016.
15. Consequently, the appeal is allowed and the ex parte judgment and
decree delivered on 31.03.2016 in Civil Suit No.56-A/14 is hereby set
aside. No order as to costs. Sd/-
(Sanjay S. Agrawal)
JUDGE
Nikita
