Smt. Tara Mishra vs Kamla Devi Mishra (Now Deceased) ...
2023 Latest Caselaw 7227 MP

1                                                         C.R.No.212 of 2023

     IN THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                 ON THE 3rd OF MAY, 2023

              CIVIL REVISION NO.212 OF 2023

     BETWEEN:-
1.   SMT. TARA MISHRA W/O LATE SURENDRA
     MISHRA, AGED ABOUT 71 YEARS, RESIDENT
     OF C/O. 1802/A, BEHIND PARIJAT BUILDING,
     THIRD STREET CHERITAL JABALPUR (MP)
     (OLD) PRESENTLY RESIDING AT B510
     FLORIANA        STATE    3RD      BLOCK
     KAROMANGALA BANGALORE (KARNATAK)
     (KARNATAKA)

2.   ANURAG MISHRA S/O LATE SURENDRA
     MISHRA RESIDENT OF C/O 1802/A BEHIND
     PARIJAT BUILDING THIRD STREET CHERITAL
     JABALPUR (OLD) PRESENTLY RESIDING AT
     B510  FLORIANA    STATE   3RD   BLOCK
     KAROMAGALA BANGLORE (KARNATAKA)

3.   AVINASH MISHRA S/O LATE SURENDRA
     MISHRA RESIDENT OF C/O 1802/A BEHIND
     PARIJAT BUILDING THIRD STREET CHERITAL
     JABALPUR (OLD) PRESENTLY RESIDING AT
     15/1 VIJAY ENCLAVE 3 EME CENTRE
     BAIRAGARH BHOPAL (MADHYA PRADESH)

                                                .....APPLICANTS

     (SHRI PRAVEEN KUMAR CHATURVEDI,
     ADVOCATE)


     AND
 2                                                                  C.R.No.212 of 2023

1.   KAMLA DEVI MISHRA (NOW DECEASED)
     REPRSENTING THROUGH LRS VISHNU
     KUMAR MISHRA S/O LATE SHRI SHYAM
     SUNDR MISHRA RESIDENT OF 1878 CHERITAL
     JABALPUR      (MADHYA         PRADESH)
     KACHHWAHA AGED ABOUT 31 YEARS,
     OCCUPATION-PRIVATE GARDNER, R/O EDEN
     GARDEN WARD, MANDLA DISTT. MANDLA
     MP.

2.   VISHNU KUMAR MISHRA S/O LATE SHRI
     SHYAM SUNDAR MISHRA RESIDENT OF 1878
     CHERITAL JABALPUR (MADHYA PRADESH)

3.   SMT. RASHMI SHUKLA W/O SHRI MUKUND
     SHUKLA RESIDENT OF JAGDAMBA COLONY
     JABALPUR (MADHYA PRADESH)

                                                   .....RESPONDENTS


...................................................................................................................................................................

      This revision coming on for hearing this day, Court passed the
following:
                            ORDER

This civil revision has been preferred by the applicants challenging the order dtd.31.01.2023 passed by 8th Civil Judge Senior Division, Jabalpur in MJC No.9/14 whereby learned Court below has allowed the non-applicants' application under Order 9 Rule 13 CPC dtd.23.12.2004 filed for setting aside exparte judgment and decree dtd. 25.11.2004 passed in civil suit No.96-A/04 instituted on 08.10.2004.

2. Learned counsel for the applicants submits that in a suit filed for declaration of title and permanent injunction based on adverse possession, summons were issued and served on the non-applicants Smt. Kamla Devi, Vishnu Kumar Mishra and Sanat Kumar Mishra but they refused to accept the service, therefore, learned 3 rd Civil Judge Class-1, Jabalpur in Civil Suit No. 96-A/04 rightly proceeded exparte

against them and after recording exparte evidence, learned trial Court rightly decreed the suit vide exparte judgment & decree dtd. 25.11.2004.

3. He further submits that the non-applicants, on false set of facts filed application under Order 9 Rule 13 r/w Section 151 CPC dtd. 23.12.2004 and despite the fact that the non-applicants failed to prove non service of summons, learned Court below has erred in setting aside the exparte judgment & decree on the basis of evidence of Anurag Mishra, which in view of Section 60 of the Evidence Act was not admissible and as such, he prays for setting aside the impugned order.

4. Heard learned counsel for the applicants and perused the record.

5. From the statement of facts mentioned in the exparte judgment & decree dtd. 25.11.2004, it is clear that the plaintiff instituted the suit for declaration of title and permanent injunction in respect of a piece of land/plot area 1260 sq.ft. claiming it to have purchased by husband of plaintiff from the defendants orally on 25.03.1986 after payment of entire sale consideration and at the same time prayed for declaration of title on the basis of adverse possession, which for want of rebuttal evidence was decreed by learned Court below vide its judgment & decree dtd. 25.11.2004.

6. For setting aside the exparte judgment & decree, the non- applicants/defendants moved an application under Order 9 Rule 13 r/w Section 151 CPC on 23.12.2004 duly supported by affidavit and upon notice, the applicants/plaintiff appeared and filed reply to the application under Order 9 Rule 13 CPC.

7. Learned Court below recorded evidence of the parties. In support of their contentions, the non-applicants adduced evidence of Vishnu Kumar Mishra, who has stated that he was not served with the

summons. In rebuttal, the applicant Smt. Tara Mishra adduced her evidence as well as the evidence of Santosh Dixit but no evidence especially the evidence of process server to prove the service of summons on the non-applicants was adduced.

8. It is well settled that in case of plea of non service of summons, entire burden is on the exparte decree holder to prove service of summons by examination of the process server as well as by producing and proving the questioned summons, which has not been done by the applicants.

9. Upon due consideration of the material available on record, learned Court below has allowed the application under Order 9 Rule 13 CPC holding thereby that non-applicants were not served with the summons, therefore, in my considered opinion, learned Court below has not committed any illegality in passing the impugned order setting aside the exparte judgment & decree dtd.25.11.2004.

10. Resultantly, this civil revision fails and is hereby dismissed.

11. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2023.05.04 11:06:25 +05'30'