Bibi Rajiaullah vs Md. Retaz
2021 Latest Caselaw 230 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(C) No. 3265 of 2019

Bibi Rajiaullah                             ...     ...     Petitioner
                                 Versus
1.   Md.   Retaz
2.   Md.   Samsuddin
3.   Md.   Mustakim
4.   Md.   Reyaz                            ...      ...    Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Shadab Eqbal, Advocate For the Respondents :

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Order No. 06 Dated: 18.01.2021

The present writ petition is taken up today through Video conferencing.

The present writ petition has been filed for setting aside the order dated 21.05.2019 passed in Civil Misc. Appeal No. 09 of 2018, whereby the Principal District Judge, Hazaribag has dismissed the appeal filed by the petitioner against the order dated 06.10.2018 passed by the Addl. Civil Judge (Junior Division)-II, Hazaribag in Civil Misc. Case No. 20 of 2018.

2. The learned counsel for the petitioner submits that the plaintiff/respondent no. 1 filed Partition Suit no. 13 of 2016 claiming therein that he and the defendant nos. 1 to 3/respondent nos. 2 to 4 are own and full brothers and are the sons of late Md. Hanif, who had purchased the land in Mouza- Barhi, Thana-Barhi, Thana No. 71, District Hazaribag under Khata No. 207, Plot Nos. 1056 and 1057, measuring total area of 12 decimals in the name of his four sons i.e., respondent nos. 1 to 4 by way of registered sale deed no. 4086 dated 28.03.1988. When the plaintiff/respondent no. 1 demanded his 1/4th share seeking partition of the suit land, the defendant nos. 1 to 3/respondent nos. 2 to 4 refused the same which gave rise to filing of the said partition suit. The said suit proceeded ex-parte and vide judgment dated 21.04.2018, the same was decided in favour of the plaintiff/respondent no. 1 without contest. Thereafter, decree was prepared on 05.05.2018. The petitioner claimed that she did not come to know the said judgment and decree earlier and only when

the respondent no. 1 tried to interfere with the possession of the petitioner over the suit property on 07.08.2018, she came to know about the same and thus filed a petition dated 27.08.2018 under Order IX Rule 13 CPC for setting aside the ex-parte judgment and decree claiming that no notice was ever served to her in the said partition suit. However, the petitioner's application was dismissed by the trial court vide order dated 06.10.2018 passed in Civil Misc. Case No. 20/2018. Aggrieved thereby, the petitioner filed Civil Misc. Appeal No. 09 of 2018 which was also dismissed vide impugned order dated 21.05.2019 giving rise to filing of the present writ petition.

3. The learned counsel for the petitioner submits that as per the order sheet of the trial court dated 02.03.2016, notices were issued and service report dated 22.03.2016 attached with the record reflected that the house of the petitioner was locked as she was not in her house. It is further submitted that the learned court below without issuing fresh notice and without following the due process as prescribed under Order V Rule 20 of the Code of Civil Procedure, ordered for service of notice through paper publication and thereafter proceeded ex-parte. The learned trial court and the appellate court failed to appreciate the provisions of Order V Rule 20 CPC and only on perusing the service report of notice which mentioned that the doors were found locked, believed that the petitioner was keeping herself out of way for the purpose of avoiding service of notice and then ordered for service of notice through paper publication. It is also submitted that in view of Order V Rule 20 CPC, upon satisfaction that the present petitioner was keeping herself out of way for the purpose of avoiding service of notice or that for any other sufficient reason, the summons cannot be served in ordinary way, the trial court ought to have ordered for the summons to be served by affixing a copy thereof at some conspicuous place in the court-house and also upon some conspicuous part of the house (if any) in which the petitioner was known to have lastly resided or carried on business or personally worked for gain. However, the trial court without assigning cogent reason, bypassed this mandatory provision and ordered for service of notice through paper publication which is an abuse of the process of

court. It is further submitted that the respondent nos. 2 to 4 are own brothers of the respondent no. 1 who sold the property to the present petitioner and they did not turn up in the trial court because they and the plaintiff/respondent no. 1 had similar interest. Thus, they played fraud with the court behind the back of the petitioner in obtaining ex-parte decree which is not fair and legal in the eyes of law. It is also submitted that the learned Principal District Judge, Hazaribag without correctly analysing the provision under Order IX Rule 13 as well as Order V Rule 20 CPC, mechanically dismissed the appeal filed by the petitioner.

4. The learned counsel for the petitioner in support of his argument puts reliance on the judgment of the Hon'ble Supreme Court rendered in the case of "Neerja Realtors Private Limited Vs. Janglu (dead) through legal representative" reported in (2018) 2 SCC 649.

5. Heard the learned counsel for the petitioner and perused the materials available on record. The thrust of argument of the learned counsel for the petitioner is that the trial court has not followed the mandatory provision of Order V Rule 20 CPC while ordering for service of notice through paper publication and as such the ex-parte judgment and decree passed by the said Court is bad in law. The trial court ought to have allowed Civil Misc. Case No. 20 of 2018 which was filed by the petitioner for setting aside the ex-parte judgment and decree dated 21.04.2018 and 05.05.2018 respectively. It is further submitted that the Principal District Judge, Hazaribag while hearing the appeal of the petitioner being Civil Misc. Appeal No. 09 of 2018 has also not appreciated the said infirmity in the order of the trial court and erroneously dismissed the appeal.

6. To appreciate the contention of the learned counsel for the petitioner, I have perused the provisions of Order IX Rule 13 CPC, which are quoted as under:

13. Setting aside decree ex parte against defendant.-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 plaintiff's 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.

7. On plain reading of the provisions of Order IX Rule 13 CPC, it would appear that an ex-parte decree can be set aside if the defendant against whom ex-parte decree has been passed files an application and satisfies the court that the summons were not duly served to him or he was prevented by sufficient cause from appearing when the suit was called on for hearing. As per second proviso to Order IX Rule 13 CPC, a decree cannot be set aside merely on the ground that there has been irregularity in the service of summons if the defendant had notice of the date of hearing and had sufficient time to appear in court. The Hon'ble Supreme Court in the case of "G.P Srivastava Vs. R.K Raizada & Ors." reported in (2000) 3 SCC 54 has held that an ex-parte decree passed against a defendant under Order IX Rule 13 CPC can be set aside upon satisfaction of the court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex-parte decree.

8. Since the claim of the petitioner in the present case is that

the summons was not duly served to her, it would be appropriate to go through the provision of Order V Rule 20 CPC which deals with substituted service of summons. The same reads as follows:

20. Substituted service.- (1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.

(1A) Where the court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. (2) Effect of substituted service--Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed--Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.

9. The aforesaid provision speaks that if the court is satisfied that the summons cannot be served in the ordinary way or the defendant is keeping out of way for the purpose of avoiding service, it may opt for serving the summons by substituted way i.e., by affixing a copy thereof in some conspicuous place in the court-house and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain or in such other manner as the court thinks fit. It further provided that if the court orders for service by an advertisement in a newspaper, the newspaper shall be daily newspaper having circulation in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. It also provides that substituted service of summons by the order of the court shall be treated as if the same was served personally to the defendant.

10. In the present case, learned Principal District Judge, Hazairbag while passing the impugned judgment dated 21.05.2019 has considered the order dated 06.01.2018 passed by the trial court which mentions that initially, the notice was sent to the petitioner through Nazarat and service report was returned with the note that the summons could not be served upon the petitioner as she was not found in her house. Thereafter, the court was satisfied that the petitioner was avoiding service of summons and thus directed to serve the notice through paper publication which was complied on 11.01.2017 by publishing a notice in daily newspaper namely, "Prabhat Khabar" and since the petitioner did not appear in the case even thereafter, the same was ordered to be proceeded ex-parte and the judgment was passed by the trial court and a decree was accordingly prepared. The petitioner claimed before the appellate court that the publication was not made in a newspaper which was widely circulated in the locality of "Barhi". However, the said claim of the petitioner was turned down by the appellate court as the respondent no. 4, through show cause affidavit, stated that he himself had handed over a copy of "Prabhat Khabar" to the husband of the appellant/petitioner.

11. I have perused the judgment of the Hon'ble Supreme Court rendered in the case of "Neerja Realtors Private Limited" (supra) as has been relied upon by the learned counsel for the petitioner in support of his contention. In the said case, notice was issued to the original defendant but the summons was returned unserved and the service report submitted by the plaintiff showed that the defendant had left the premises two years back and thereafter the trial court allowed the application for substituted service of notice, however, without assigning any reason. Thereafter, the paper publication was made and when the defendant did not appear even thereafter, an ex-parte judgment/decree was passed by the trial court. An appeal was preferred to the High Court which was allowed and the ex-parte judgment was set aside. The Hon'ble Supreme Court also affirmed the judgment of the High Court holding inter alia that there was clear breach of the provisions of Order V

Rule 17 CPC which clearly provides the procedure when defendant refuses to accept service, or cannot be found after using all due and reasonable diligence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of summons on his behalf, nor any other person on whom service can be made. The Hon'ble apex Court further observed that when the application for substituted service was filed before the trial court under Order V Rule 20 CPC, a cryptic order was passed. Order V Rule 20 CPC requires the court to be satisfied that there is reason to believe that the defendant is keeping out of way for the purpose of avoiding service or for any other reason, the summons cannot be served in ordinary way. Substituted service is an exception to the normal mode. The court must apply its mind to the requirement of Order V Rule 20 CPC and its order must indicate due consideration of the provisions contained therein. It was also found that the trial court ignored the provisions of Chapter II of the Civil Manual of the High Court in its appellate side. Their Lordships also observed that the appellant chose to file appeal under Section 96 CPC and was able to establish adequate grounds before the High Court for setting aside the judgment and decree.

12. Thus, the facts and circumstance of the said case was different from the case in hand. In the aforesaid case, there was no reason assigned by the trial court while passing the order for substituted service. In the aforesaid case, the Hon'ble Supreme Court was dealing with the judgment passed by the High Court whereby an appeal filed under Section 96 CPC for setting aside the ex-parte decree was allowed. Their Lordships took note of the provision of 96(2) CPC which provides the grounds for filing of an appeal against an ex-parte decree and held that the defendant was able to establish adequate grounds before the High Court for setting aside the judgment and decree. It has further been held that when an application under Order IX Rule 13 CPC is dismissed, the remedy of filing appeal is available under Order XLIII Rule 1 CPC, however, no further remedy is available once such an appeal is dismissed.

13. Since in the present case, the learned court below was

dealing with an application under Order IX Rule 13 CPC and the said court specifically recorded the reason for taking recourse of the substituted means of service on the ground that the petitioner was avoiding the service of summons, the ratio laid down in the case of "Neerja Realtors Private Limited" (supra) will not be applicable in the facts and circumstances of this case.

14. In view of the aforesaid legal and factual position, I do not find any infirmity in the order dated 21.05.2019 passed by the Principal District Judge, Hazaribag confirming the order dated 06.10.2018 passed by the Addl. Civil Judge (Junior Division)-II, Hazaribag in Civil Misc. Case No. 20 of 2018.

15. The writ petition being devoid of merit is accordingly dismissed.

(Rajesh Shankar, J.) Manish/AFR