Jharkhand High Court
Bhudeo Krishna Sudarshan vs Shambhu Pujhar on 28 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:20771
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 454 of 2024
----
Bhudeo Krishna Sudarshan, aged about 63 years, son of Yugal
Kishore Sudarshan, resident of T - 22/7DLF, Phase - III, DLF City
NCR, Delhi represented through his duly constituted attorney vide
the Notarized Power of Attorney Holder 128, dated 26.08.2016
namely Rajan Kumar aged about 46 years, son of Baban Bihari
Singh, resident of 36, SBI, Officer's Colony, Kalimandir Road,
Hanuman Nagar, PO - Hanuman Nagar, PS - Patrakar Nagar,
District - Patna (Bihar), permanent resident of village - Bhorhamal,
Ward No.8, PO - Pathai, PS - Belsand, District - Samastipur, Bihar
.... Petitioner
-- Versus --
1. Shambhu Pujhar, son of Late Baidhyanath @ Baijnath Pujhar,
resident of village - Tarabad, PO - Rikhia, PS - Mohanpur (Now
Rikhiya), Sub and District - Deoghar, Jharkhand
2. Ajit Kumar, son of Raj Kumar Prasad, resident of village - Khijuria,
PO - Deoghar College, PS - Mohanpur (Now Rikhiya), Sub and
District - Deoghar, Jharkhand
3. Ratna Mukherjee, wife of Late Shyamal Mukherjee
4. Arup Chatterjee, son of Late Shyamal Mukherjee
5. Bandita Mukherjee, daughter of Late Shyamal Mukherjee
O.P. Nos.3 to 5 all are resident of Bhavnath Sen Stree - 15B,
Ultadanga, Shyam Bazar, PO and PS - Shyam Bazar, Kolkata (West
Bengal) .... Opposite Parties
----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner :- Mr. Atanu Banerjee, Advocate
:- Mr. Sudhanshu Kumar Deo, Advocate
For O.P. Nos.3 to 5 :- Mr. Ashish Verma, Advocate
----
07/28.07.2025 Heard Mr. Atanu Banerjee, learned counsel appearing for
the petitioner and Mr. Ashish Verma, learned counsel appearing for
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the opposite party Nos.3 to 5.
2. Notice upon rest of the opposite party Nos. 1 and 2 have
already been served, however, they have chosen not to appear.
With a view to provide one more opportunity to opposite party Nos.
1 and 2 the matter was adjourned on 24.03.2025 and further on
22.04.2025 in spite of that they have not appeared, as such this
petition is being heard in absence of opposite party Nos. 1 and 2.
3. This petition has been filed under Article 227 of the
Constitution of India for setting aside of the order dated 02.03.2024
passed by learned Civil Judge (Senior Division) - IX, Deoghar in
Misc. Case No.75 of 2023 arising out of Original Suit No.34 of 2013
whereby the petition dated 26.09.2023 filed under Order - IX Rule
13 of CPC on behalf of the judgment debtor Nos.3 to 5 (respondent
Nos.3 to 5) for setting aside ex-parte judgment dated 29.07.2022
and decree dated 10.08.2022 passed in Original Suit No.34 of 2013
by learned Civil Judge (Senior Division) - IX, Deoghar has been
allowed and the said ex-parte judgment dated 29.07.2022 and
decree dated 10.08.2022 passed in Original Suit No.34 of 2013 has
been set aside and the said suit has been restored.
4. Mr. Atanu Banerjee, learned counsel appearing for the
petitioner submits that the petitioner/plaintiff filed a plaint dated
22.03.2013 in the Court of learned Subordinate Judge, 1st/ Civil
Judge (Senior Division) - I, at Deoghar against one Sambhu Pujhar
and four others for a decree directing defendants/proforma
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defendants simultaneously to execute and register sale deed in
favour of plaintiff on acceptance of the balance consideration with
delivery of possession of the suit property in favour of the plaintiff.
He submits that the said suit was filed being Title Declaratory Suit
No.34 of 2013 and it was alleged therein that acquisition of right,
title and interest over the suit land and the cause of action on the
date of execution and registration of the agreement for sale of the
suit property between the plaintiff and the defendants in part
performance of contract of sale of the suit property on 19.03.2012
and 26.03.2012, the date of sign and transmission through postal
service of the registered legal notice on behalf of the plaintiff on
07.04.2012, when defendants gave reply and continuing thereafter.
The schedule suit plot being an area of 14 acres 68 decimals
appertaining to settlement plot No.295 in Mouza - Sirsa within
Jamabandi No.19, Mohanpur Police Station in the District of
Deoghar was the cause of action to institute the said suit. The
summon was issued to the defendants and the defendant No.1
Shambhu Pujhar appeared and filed written statement denying the
averments made in the plaint. The other defendants, who were also
noticed, did not choose to appear despite issuance of notice
through registered post on 26.09.2014. On 06.09.2014, the order
was passed to post the case on 19.11.2014 with direction to plaintiff
to comply the previous order. The order dated 02.03.2015, passed
in Original Suit No.34 of 2013 recording a finding of valid service
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and to proceed ex-parte against defendant Nos.3 to 5 and
thereafter the learned Court has proceeded in accordance with law
and passed the judgment on 29.07.2022. On this ground, he
submits that there is latches on the part of the opposite
parties/defendants and the learned Court has rightly proceeded and
by the impugned order the judgment and decree has been recalled
and the suit has been restored which is causing prejudice to the
petitioner/plaintiff. He submits that once the notice has already
been effected and intentionally the opposite party herein has not
appeared in the suit the learned Court in that background has
wrongly passed the order. He submits that once the notice has been
issued and even in absence of any acknowledgment it is deemed to
be validly served. To buttress this argument, he relied in the case of
Parimal versus Veena @ Bharti reported in (2011) 3 SCC
545 and submits that once the notice is deemed to be validly
served and recalling of the ex-parte judgment will prejudice the
case of the petitioner and in view of that the learned Court has
wrongly passed the order. On this ground, he submits that the
impugned order may kindly be set aside.
5. On the other hand, Mr. Ashish Verma, learned counsel
appearing for the defendant/opposite party Nos.3 to 5 submits that
in the suit opposite party Nos.3 to 5 are the main contesting party,
however, they have been treated as proforma defendants and the
suit land is belonging to the opposite party Nos.3 to 5. He further
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submits that due to absence of opposite party Nos.3 to 5 Shambhu
Pujhar has taken benefit of that and has created so many false and
fabricated documents and he has also concealed the registered
revocation of power of attorney dated 22.09.2010. He submits that
the power of attorney was already revoked on 22.09.2010, however,
he has executed a sale deed in favour of the petitioner/plaintiff on
02.05.2011. He submits that intentionally Shambhu Pujhar was
made main contesting defendant and opposite party Nos.3 to 5 who
are the contesting defendant has been shown as proforma
respondent in the suit. He further submits that the notices have not
been served upon the opposite party Nos.3 to 5 and they are
residing at Kolkata. He further submits that the learned Court in this
background has rightly set aside the ex-parte judgment and decree
and restored the suit and there is no illegality in the impugned
order.
6. In view of above submission of learned counsel appearing
for the parties, the Court has gone through the materials on record
and finds that admittedly the power of attorney of Shambhu Pujhar
was revoked by the opposite party Nos.3 to 5 by way of registered
revocation dated 22.09.2010 brought on record by way of filing
counter affidavit. The entire order sheet have been brought on
record and in the order dated 02.03.2015 the learned Court has
accepted the notice as validly served only because it was issued by
the registered post, however, there is no receiving of any execution
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of the said notice or tamila. Thus, it is clear that in absence of any
proper receiving of the execution the notice has been deemed to be
validly served by the learned trial court and pursuant to that the ex-
parte decree has been passed against the opposite party Nos.3 to 5.
The ex-parte judgment and decree has been annexed with the CMP
as Annexure-5 and in the entire judgment of ex-parte decree there
is no discussion as to how the notice upon the opposite party No.3
to 5 has been effected, meaning thereby in absence of any cogent
evidence of service of notice on the record ex-parte proceeding has
taken place. No evidence has been led on behalf of the
petitioner/plaintiff that the opposite party Nos.3 to 5 were having
knowledge of pendency of the original suit being OS No.34 of 2013.
If the proceeding was fixed as ex-parte against the opposite party
Nos.3 to 5, the satisfaction of learned Court on the service was one
of the mandatory aspect. There is no finding or whisper regarding
satisfaction of the learned trial court about non-service of the notice
upon the opposite party Nos.3 to 5 in the ex-parte deciding the suit
and further there is no finding that they were avoiding the service
despite the repeated efforts by the Court. For proceeding ex-parte,
it is a duty of the learned trial court to record its satisfaction that
the opposite party was avoiding the service of notice and even the
learned Court has not framed any issue on that point in deciding the
said suit ex-parte. The learned Court in the impugned order has also
taken note of the order dated 02.03.2015 by which the notice was
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said to be validly served upon the opposite party Nos.3 to 5 and has
given the finding that there is no mention of postal receipt in the
said order dated 02.03.2015. There is no service report of the said
notice sent through registered post. The Court did not opt for any
substituted services and in this background the learned Court has
been pleased to set aside the ex-parte judgment and decree and
restored the suit and merely on technicalities the Court should not
shut out the cases.
7. So far Order - IX Rule 13 of CPC is concerned, it is meant
for setting aside the ex-parte decree and the court should not shut
out cases on mere technicalities, but rather afford opportunity to
both the sides and thrash out the matter on merits. The court
cannot let the party suffer due to negligent or fault committed by
their counsel.
8. So far the judgment relied by Mr. Banerjee, learned counsel
appearing for the petitioner in the case of Parimal versus Veena
@ Bharti (supra) is concerned in that case the law on the point of
notice has been discussed.
9. What has been discussed here-in-above, it is crystal clear
that the learned Court has found that there is no postal receipt and
any other document on the record to suggest that the notice upon
the opposite party Nos.3 to 5 have been served properly, as such
the judgment in the case of Parimal versus Veena @ Bharti
(supra) is not helping the petitioner herein.
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10. In view of above facts, reasons and analysis, the Court finds
that there is no illegality in the impugned order, as such this petition
is dismissed.
11. The restored suit shall be decided in accordance with law
without prejudice to this order as this order has been passed only
considering the parameters of Order - IX Rule 13 of CPC.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
