Madhya Pradesh High Court
Bebi Bai Dwivedi vs Jaggu (Died) Thr. Lrs. Mst. Sugiya ... on 3 February, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3 rd OF FEBRUARY, 2023
FIRST APPEAL No. 614 of 2017
BETWEEN:-
BEBI BAI DWIVEDI W/O SHRI BRIJENDRA MOHAN
DWIVEDI, AGED ABOUT 56 YEARS, OCCUPATION:
HOUSE WIFE R/O VILLAGE GAIRTALAI, TEH.
VIJAYRAGHAVGARH DISTT. KATNI (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI M.P.SHUKLA - ADVOCATE)
AND
1. JAGGU (DIED) THR. LRS.
(i) MST. SUGIYA BAI W/O LATE JAGGU
VISHWAKARMA R/O VILLAGE JARARODA, TEH.
VIJAYRAGHAVGARH DISTT. KATNI (MADHYA
PRADESH)
(ii) KRISHNA KUMAR S/O LATE KESHAV PRASAD R/O
VILL. JARARODA TEH. VIJAYRAGHAVGARH
DISTT. KATNI (MADHYA PRADESH)
(iii) SURESH PRASAD S/O JAGGU VISHWAKARMA R/O
VILL. JARARODA TEH. VIJAYRAGHAVGARH
DISTT. KATNI (MADHYA PRADESH)
(iv) KESHAV PRASAD S/O LATE JAGGU
VISHWAKAR M A R/O VILL. JARARODA TEH.
VIJAYRAGHAVGARH DISTT. KATNI (MADHYA
PRADESH)
(v) URMILA BAI D/O LATE JAGGU VISHWAKARMA
R/O VILL. JARARODA TEH. VIJAYRAGHAVGARH
DISTT. KATNI (MADHYA PRADESH)
(vi) AYOGHYA PRASAD S/O LATE JAGGU
VISHWAKARMA R/O VILL. MAHGAWAN POST
BARCHHEKA TEH. BADWARA, DISTRICT KATNI
Signature Not Verified
Signed by: TRUPTI GUNJAL
Signing time: 07-Feb-23
10:53:46 AM
2
(MADHYA PRADESH)
2. RAMDEEN S/O SUKHDEV VISHWAKARMA, AGED
ABOUT 60 YEARS, OCCUPATION: CULTIVATOR
R/O VILL. GAIRTALAI TAH. VIJAYRAGHAVGARH,
DISTRICT KATNI (MADHYA PRADESH)
3. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR KATNI (MADHYA PRADESH)
.....RESPONDENTS
(SHRI AMITABH BHARTI - ADVOCATE FOR RESPONDENT NO.1, SHRI
SHAMBHOO DAYAL GUPTA - ADVOCATE FOR RESPONDENT NO.2 AND
MS.PAPIYA GHOSH - PANEL LAWYER FOR THE RESPONDENT
NO.3/STATE)
T h is appeal coming on for order this day, t h e cou rt passed the
following:
JUDGMENT
This first appeal under section 96 of CPC has been filed against the
judgment and decree dated 26.04.2004 passed by Additional Judge to the Court
of first Additional District Judge, Katni, District Katni in Civil Suit No.2-A/2003,
by which an ex parte decree has been passed against the appellant as well as
co-defendant Ramdeen.
2. It is not out of place to mention here that Ramdeen was also
proceeded ex parte and accordingly he had moved an application under Order
9 Rule 13 CPC, which was dismissed. The Misc.Appeal No.462/2017 filed by
Ramdeen is also listed for analogous hearing.
3. It is submitted by the counsel for appellant that the appellant, who was
the defendant no.2 in the civil suit, was never served with the notice and she
came to know about the passing of ex parte decree only when she obtained the
revenue records in the year 2017.
4. Heard the learned counsel for the appellant.
5. The record of the trial court has been received.
Signature Not Verified
Signed by: TRUPTI GUNJAL
Signing time: 07-Feb-23
10:53:46 AM
6. From the record, it is clear that the notice of this plaint was sent to the
appellant/defendant no.2 by registered notice with acknowledgment due on
8.03.2003 and the case was fixed for 13.03.2003. As per the ordersheet of the
trial court, the Presiding Judge was on leave on 13.03.2003. It is also mentioned
that the service report of defendants no.2 and 3 is not received back and
accordingly the case was fixed for 21.03.2003. On 21.03.2003 it was
mentioned that the service report of defendants no.2 and 3 was not received
back and accordingly, it was directed that on payment of process fee, fresh
notice be issued by ordinary and registered mode to the defendant no.2 and the
case was fixed for 22.04.2003. On 22.04.2003 the defendant no.3 was
proceeded ex parte.
7. It is clear from the record that it contains one sealed envelope, which
was sent by registered mode on 08.03.2003 and was returned back with an
endorsement dated 15.03.2003 that the addressee has refused to accept the
same. On the envelope itself it is mentioned that the next date before the trial
court is 13.03.2003. If the postman had tendered the notice on 15.03.2003 i.e.
subsequent to the date fixed before the trial court, then the addressee was well
within her right to refuse to accept the notice.
8. Furthermore, from order dated 21.03.2003 it is clear that the
defendant no.2/appellant was not proceeded ex parte on the basis of said
refusal. But it is clear that since the service report was not received, therefore,
the plaintiff was directed to pay the fresh process fee and from the record, it is
not clear as to whether any fresh process fee was paid in compliance of order
dated 21.03.2003. There is no document in the record to show that any notice
in compliance of order dated 21.03.2003 was issued to the defendant
no.2/appellant.
Signature Not Verified
Signed by: TRUPTI GUNJAL
Signing time: 07-Feb-23
10:53:46 AM
9. It appears that on 22.04.2003 the trial court had proceeded ex parte
against the appellant on the basis of the return of the registered letter, which was
alleged to have been refused by the appellant on 15.03.2003. However, in the
light of order dated 21.03.2003 as well as that registered letter was intended to
be delivered on 15.03.2003 i.e. subsequent date of hearing, the appellant could
not have been proceeded ex parte. Thus, it is clear that the trial court
committed a material illegality by proceeding ex parte against the
appellant/defendant no.2.
10. Under these circumstances, this Court is left with no other option but
to set aside the ex parte decree passed against the appellant/defendant no.2.
11. As a consequence thereof, the ex parte decree dated 26.04.2004 is
hereby set aside. The matter is remanded back to the trial court for deciding
the matter afresh. The parties are directed to appear before the trial court on
20.03.2023. No fresh notice is required to be issued to the defendants.
12. The appeal succeeds and is hereby allowed.
13. No order as to costs.
(G.S. AHLUWALIA)
JUDGE
TG /-
Signature Not Verified
Signed by: TRUPTI GUNJAL
Signing time: 07-Feb-23
10:53:46 AM
