Smt.Swaraj Kapoor & Anr. vs Vijay Kumar Shrimal & Ors.
2023 Latest Caselaw 3045 MP

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IN THE HIGH COURT OF MADHYA PRADESH
              AT I N D O R E
                       BEFORE
        HON'BLE SHRI JUSTICE VIVEK RUSIA

           ON THE 20th OF FEBRUARY, 2023

            SECOND APPEAL No. 123 of 2009

BETWEEN:-
   SMT.SWARAJ KAPOOR W/O RAMBABU KAPOOR,
   AGED    ABOUT    62   YEARS,  OCCUPATION:
1. HOUSEWIFE, R/O PATRAKAR COLONY,INDORE
   (MADHYA PRADESH) - APPELLANT/DEFENDANT
   NO.5
   SMT SARITA PURISHRI VED PRAKASH PURI, AGED
   ABOUT 55 YEARS, OCCUPATION: HOUSEWIFE, R/O
2.
   430 GOYAL NAGAR INDORE (MADHYA PRADESH)
   APPELLANT/DEFENDANT NO.7
                                        .....APPELLANT
(BY ALOK SHARMA, LEARNED COUNSEL FOR THE PETITIONER )


AND
   VIJAY KUMAR SHRIMAL S/O BABULAL, AGED
   ABOUT 59 YEARS, OCCUPATION: BUSINESS, R/O
1. METRO                      ELECTRONICS,AB
   ROAD,SARANGPUR,RAJGARH (MADHYA PRADESH)
   RESPONDENT NO.1/PLAINTIFF
   DR.KULDEEP BHALLA S/O SARDARILAL BHALLA,
   AGED ABOUT 50 YEARS, OCCUPATION: DOCTOR,
2. R/O BHALLA CLONY AB ROAD SARANGPUR DISTT
   RAJGARH (MADHYA PRADESH) RESPONDENT
   NO.2/DEFENDANT NO.1
   ASHOK KUMAR BHALLA S/O SARDARILAL
   BHALLA, AGED ABOUT 45 YEARS,     R/O B-12
3. VIJAYMANDAL ENCLAVE SARYHAUZKHAS NEW
   DELHI (DELHI)- RESPONDENT NO.3/DEFENDANT
   NO.4
   MS. VIBHA BAHEL D/O SARDARILAL BHALLA,
   AGED ABOUT 40 YEARS, R/O SECTOR 37/328
4.
   GAUTAM BUDDHA NAGAR         NOIDA (UTTAR
   PRADESH) RESPONDENT NO.4/DEFENDANT NO.6
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   STATE OF M.P TH COLLECTOR RAJGARH
5. (MADHYA        PRADESH) RESPONDENT
   NO.5/DEFENDANT NO.7
                                                .....RESPONDENTS
(BY SHRI SAMEER ATHAWALE, SOFIYA KHAN, LEARNED COUNSEL
FOR THE RESPONDENT).

This appeal coming on for orders this day, the court passed the
following:

                             ORDER

Respondent No.1 filed suit in respect of land survey No.5/2 situated between the lands of metro Electronics and Meghji Bhailal at Nazimabad, Sarangpur, District Rajgarh against the present appellants and remaining respondents. In the Civil Suit appellants were served by way of substitution service by way of publication in the news paper having wide circulation at Ujjain City.

After the said publication, the trial court proceeded ex-parte against them and finally thereafter decreed the suit in favour of the plaintiff. Being aggrieved by the aforesaid judgment, two appeals were preferred bearing No.16-A/2008 and 15-A/2008, both were dismissed vide judgment dated 22.08.2008, hence, this appeal before this Court.

Vide order dated 05.12.2014, appeal has been admitted on the following question of law:-

''A. Whether the service of notice on defendants No.5 and 7, who are residents of Indore, effected by way of publication in a newspaper which is circulated at Ujjain is proper ?

B. Whether the Court can pass a decree on the basis of documents (Exh. P-1 & P-2) which are insufficiently stamped and

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are inadmissible in evidence and, there is no description of the suit property ?

I have heard learned counsel for the parties.

Respondent No.1 filed an application that this appeal is pending since 2009 for awaiting the final adjudication but if issue no.1 is answered in favour of appellants then matter would be remanded back to the trial court for further adjudication, then there would no need to answer the question No.2 framed by this Court. Prayer made by the respondent 1/plaintiff is reasonable.

Learned counsel for the appellants submits that the appellants are residents of Indore as mentioned in the plaint but the respondent No.1/plaintiff tried to serve them by way of publication in local news circulated at Ujjain City, therefore, there cannot be presumption of service of notice to them as paper circulated at Ujjain has no circulation in Indore. Paper news is available in the record and it is clear that notice was published in the addition news paper Ujjain.

Learned counsel for the respondent No.1 submits that before publication, notices were sent to the appellants although they were returned unserved but other defendants are relatives of defendant No.5 and 7 i.e. appellants and they had knowledge about the pendency of the suit, appellants avoided the service but facts remains that appellants had knowledge about the pendency of suit and they deliberately remained ex-parte.

Heard on question of law No. 'A'.

Once plaintiff filed an application seeking service to the defendant No.5 and 7 i.e. appellants under Order 5 Rule 22 of CPC

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by way of paper publication that publication ought to have been done in local news paper where parties are residing. The plaintiff who is also family member was aware that appellants are residing in Indore and he gave address of Indore then in order to make them serve notice, paper publication was done having wide circulation at Indore City, thus the appellants have wrongly been proceeded ex-parte, hence, both the judgments are liable to be set aside. Hence, Question of Law No.'A' is answered in favour of the appellants and Question No.'B' is not liable to be considered at this stage.

In view of above, matter is remanded back to the trial court by setting aside the judgment dated 22.08.2008 and 28.11.2005 to decide afresh from the stage when defendants proceeded ex-parte. Now appellants and plaintiff shall appear before the Civil Court on 23.03.2023. It is made clear that other defendants have not filed second appeal before this Court, therefore, matter is not remanded back for them.

The trial court shall decide the suit expeditiously preferably end of this year.

Record of the trial court and appellate court be sent back.

(VIVEK RUSIA) JUDGE praveen

Digitally signed by PRAVEEN NAYAK Date: 2023.02.24 16:04:41 +05'30'