Jharkhand High Court

Md. Shaukat Aged About 56 Years Son Of ... vs Subodh Kumar Kandhway on 21 July, 2025

                                                            2025:JHHC:19966




     IN THE HIGH COURT OF JHARKHAND, RANCHI
                  Civil Revision No. 32 of 2022


      Md. Shaukat aged about 56 years son of Late Md. Qurban
      resident of Garh Mohalla Pachamba at present reside at Sabji
      Bazar Jaridih Pachamba, P.O. & P.S.- Pachamba, District-
      Giridih.
                                .... Petitioner / Defendant
                                Versus
  1. 1.Subodh Kumar Kandhway, Vill-Maheshlundi, P.O.
     Karharbari, P.S.-Giridhi (M), District - Giridih.
  1.2.Champa Devi W/O Late Lakhan Lal Ram, Vill- Maheshlundi,
      P.O. Karharbari, P.S.-Giridih(M), District-Giridih.
  1.3.Abha Devi W/O Mahendra Prasad, D/O Late Lakhan Lal `
      Ram, Darku Nagar, Chas, P.O P.S. Chas, Dist-Bokaro.
  1.4Bibha Devi W/O Bhola Ram Gupta D/o Late Lakhan Lal
      Ram, Bhojpur Colony, Near Ganga Bridge Chas, P.O. P.S.
      Chas, Dist-Bokaro.
  1.5.Seema Kandhway W/O Pankaj Kumar D/O Late Lakhan Lal
      Ram, Lohia Chowk, Dhanwar, Dist-Giridih.
  1.6.Anjana Kumari D/O Late Lakhan Lal Ram Vill-
      Maheshlundi, P.O. Karharbari, P.S.-Giridih(M), District-
      Giridih.
                                .... Opposite Parties / Plaintiffs

   Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                        --------

     For the Petitioner         : Mr. S.K. Murtty, Adv.
     For the Opp. Parties       : Mr. Deepak Kr. Dubey, Adv.
Order No. 12 Dated: 21/07/2025

Heard Mr. S.K. Murtty, learned counsel for petitioner as well as

Mr. Deepak Kr. Dubey, learned counsel for the opposite parties.

2. The instant civil revision has been directed against the order dated

10.06.2022 passed by learned Principal District Judge, Giridih in Civil

Misc. Appeal No. 04 of 2019 whereby and whereunder the learned

appellate court upheld the order dated 25.04.2019 passed by learned

Munsif, Giridih in Misc. Case No. 08 of 2013, whereby and whereunder

petition filed by the petitioner under Order IX Rule 13 read with Section Civil Revision No. 32 of 2022 Page | 1 2025:JHHC:19966

151 for setting aside ex parte decree dated 31.01.2012 passed in

Eviction Suit No. 10 of 2006 by learned Civil Judge, Junior Division,

Giridih has been dismissed.

3. I have already heard the arguments of learned counsel for the petitioner

as well as learned counsel for the opposite parties.

4. Learned counsel for the petitioner submitted that Eviction Suit No. 10

of 2006 was instituted by the plaintiff under Section 11(c) and (d) of

Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 i.e. on the

ground of personal necessity in default of payment of rent. Ultimately,

the suit was decreed ex parte and the defendant/petitioner is directed to

hand over the possession of the suit premises within two months from

the date of the judgment.

5. By Assailing the ex parte decree, learned counsel for the petitioner

submitted that no summons issued by the court was ever served upon

the petitioner due to incorrect address as mentioned in the plaint and as

per service report of summons upon defendant no.1 (petitioner), it is

reported that he has refused to receive the same and in respect of

defendant no.2, it was reported that he could not met hence, his

summons was affixed on the door. It is further submitted that since there

is no valid service of summons on defendant no.2 as such registered

notice was required to send through post-office along with summons on

his correct address, but the plaintiff/opposite party dishonestly did not

take any step and prayed before the concerned court for publishing the

notice in daily newspaper " Prabhat Khabar" . It is further submitted

that petitioner is illiterate person and earns his livelihood by selling

vegetables, therefore, he could not read the newspaper, hence could not

Civil Revision No. 32 of 2022 Page | 2 2025:JHHC:19966

know about the institution of the aforesaid eviction suit and did not

appear to contest the same which was decreed ex parte against both the

defendants. It is further submitted that the defendant no.1 was purposely

pleaded as party although he had nothing to do with the suit premises

rather defendant no.2 (petitioner) who is coming in peaceful possession

of the suit premises on his own rights as purchaser alongwith one Md.

Mumtaj Alam through registered sale deed dated 22.08.2004 from one

Binod Ram (Grand-son of Khatiyani Raiyat) which is situated over

Khata No. 37, Plot No. 806, Area 01 Decimal (480 Sq. ft) out of total

area 14 decimal. The purchasers have also got mutation in their favour

vide Mutation Case No. 1039 of 1011 and paying rent for the same. It is

further submitted that the petitioner is residing at Sabji Mohalla, Bazaar

Pachamba as mentioned in his Aadhar Card also. It is further submitted

that the petitioner came to know about impugned ex parte decree on

05.04.2013, when notice was served to him in execution Case No. 11/12

directing him to appear on 17.04.2013 in the execution case, hence, the

petitioner filed a Misc. Case No. 08 of 2013 for setting aside the

ex parte decree dated 27.01.2012/ 31.01.2012 passed in Eviction Suit

No. 10 of 2006 which was dismissed vide order dated 25.04.2019 by

learned Munsif, Giridih and then petitioner filed Civil Misc. Appeal No.

04 of 2019 which was also dismissed by Principal District Judge,

Giridih vide order dated 10.06.2022. As such petitioner has illegally

been deprived of his rights to contest the suit although, he has very good

case on merits claiming the suit property of his own right obtained

through registered sale deed executed by the rightful owner. Therefore,

impugned orders requires to be set aside and the original suit be restored

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to its original number and the petitioner may be provided an opportunity

to contest the same on merits.

6. On the other hand, learned counsel for the Opp. Party/plaintiff has

vehemently argued that the suit was instituted on 30.11.2006 which was

admitted on 22.05.2007. The summons were issued against the

defendants through process of Court as well as registered summons

acknowledgement deed. The main defendant no.1 declined to receive

the notice as noted by the process server and mentioned in the order-

sheet dated 14.09.2007. The defendant nos. 2 (present petitioner) who

was occupying the suit premises as a sub-lessee as defendant no.1 had

gone outside and his summon was pasted on the door wherein he was

residing. The notices sent through post were also not returned thereafter,

the plaintiff/respondent prayed for publication of summons in local

circulating newspaper "Prabhat Khabar". Accordingly, the notice was

published, thereafter the suit was rightly proceeded ex parte. It is further

submitted that the defendant no.1 (Abdul Razak), who was inducted as

tenant by father of the plaintiff over the suit premises and was engaged

in vegetable selling business has not filed any application under Order

IX Rule 13 CPC rather the defendant no.2 who happens to be sub-lessee

of the defendant no.1 filed an application under Order IX Rule 13 CPC

solely on the ground that there was no correct address of the defendant.

It is further submitted that learned trial court as well as learned appellate

court in petition filed by the present petitioner under Order IX Rule 13

CPC has disclosed the same and correct address as was mentioned in

the plaint. Therefore, the plea taken by the petitioner is absolutely false

and rightly not relied by the learned trial court. Further, this petitioner

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claims to have the purchased the suit property from a stranger and

claims his title over the suit premises which cannot be decided in the

eviction suit. Therefore, there is no illegality or infirmity in the

impugned order calling for any interference which is fit to be dismissed.

7. I have gone through the order passed by Civil Judge, Junior Division,

Giridih as well learned appellate court and also perused the relevant

order sheets from the trial court record, it appears that eviction suit has

been instituted against defendant no.1 Abdul Razak who had

approached the father of the plaintiff and was inducted as a tenant over

the suit premises for running his business of selling vegetables on

monthly rental. The rent was subsequently enhanced from time to time,

but the defendant no.1 not only defaulted in payment of rent, but also

inducted defendant no.2 Mohd. Shaukat (petitioner) as a sub-tenant

under him. The plaintiff himself reasonably and bona fide required the

suit premises and filed this suit. During the pendency of the suit the

original plaintiff (Lakhan Ram) was died and his sons were substituted

and contest the suit. It appears that the main defendant no.1 declined to

receive the summons and did not appear to contest the suit inspite of

publication of summons in the local circulating newspaper "Prabhat

Khabar". He has also filed no application to set aside the ex parte

decree passed against him. It further appears that the sole ground taken

by the petitioner that his address was not rightly mentioned in the plaint

is also not sustainable as he himself contesting the petition filed under

Order IX Rule 13 CPC as well as Misc. Appeal filed by him showing

his address as mentioned in the plaint. Therefore, so far service of

summons is concerned it will be deemed proper against the petitioner.

                      Civil Revision No. 32 of 2022                 Page | 5
                                                                2025:JHHC:19966

The next question of fact for consideration as to whether the petitioner

was prevented from appearing and contesting the suit due to any

sufficient reasons. In this connection also nothing has been opined by

the petitioner showing any exceptional circumstances or hardship to be

considered as sufficient cause to prevent him from appearing and

contesting the eviction suit filed by the plaintiff. The story of receiving

of notice only at the stage of execution does not appear to be

convincing. I further find that both the courts below have applied their

judicial mind towards the circumstances brought on record by the

petitioner and rightly rejected his prayer for setting aside the ex parte

decree in eviction suit no. 10 of 2006.

8. In view of aforesaid discussion and reasons, I find no merits in this