Patna High Court
Renu Sinha vs Bajrangi Ram @ Bajo Ram And Ors on 31 January, 2024
Author: Nawneet Kumar Pandey
Bench: Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.2383 of 2007
======================================================
1. RENU SINHA D/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
2. Rita Sinha D/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
3. Madhu Sinha D/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
4. Seema Sinha D/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
5. Nutan Sinha D/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
6. Rajani Sinha D/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
7. Mithilesh Kr. Sinha S/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
8. Rajeshwar Kr. S/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
9. Rakesh Kr. Sinha S/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
10. Anu Sinha D/O Singheshwar Prasad @ Chamo Prasad R/O Village-
Rajowna, P.S. and P.O.- Lakhisarai, District- Lakhisarai, Presently R/O
Mohalla- Alkapuri, P.O.- Anisabad, P.S.- Gardanibagh, District- Patna
11. Pramila Devi R/O Village- Rajowna, P.S. and P.O.- Lakhisarai, District-
Lakhisarai, Presently R/O Mohalla- Alkapuri, P.O.- Anisabad, P.S.-
Gardanibagh, District- Patna
... ... Petitioner/s
Versus
1. BAJRANGI RAM @ BAJO RAM and ORS S/O Late Sakal Ram R/O
Village- Chouki, P.S.- Lakhisarai, P.O.- Balgudar Lakhisarai, District-
Lakhisarai
2. Jasoda Ram @ Raso Ram S/O Late Sakal Ram R/O Village- Chowki, P.S.-
Lakhisrai, P.O.- Balgudar, Distt.- Lakhisarai
3. Rajo Ram @ Rajendra Ram S/O Late Sakal Ram R/O Village- Chouki, P.S.-
Lakhisarai, P.O.- Balgudar Lakhisarai, District- Lakhisarai
Patna High Court C.R. No.2383 of 2007 dt.31-01-2024
2/10
4. Shiv Kumar Ram S/O Late Sakal Ram R/O Village- Chouki, P.S.-
Lakhisarai, P.O.- Balgudar Lakhisarai, District- Lakhisarai
5. Chchotu Ram S/O Late Sakal Ram R/O Village- Chouki, P.S.- Lakhisarai,
P.O.- Balgudar Lakhisarai, District- Lakhisarai
6. Hira Ram S/O Late Sakal Ram R/O Village- Chouki, P.S.- Lakhisarai, P.O.-
Balgudar Lakhisarai, District- Lakhisarai
... ... Opposite parties
======================================================
Appearance :
For the Petitioner/s : Mr. Rudal Prasad
Mr. Neeraj Nandan
Mr. Mukesh Kumar
Mr. Binay Kumar Pandey
For the opposite parties None
======================================================
CORAM: HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV JUDGMENT
Date : 31-01-2024
I have already heard the learned counsel for the
petitioners. None appeared on behalf of the opposite parties.
2. This civil revision has been preferred by the
petitioners against the order dated 29.09.2007 passed by
Additional District Judge, F.T.C.-V, Munger in Civil Review
Misc. No. 01 of 2005, preferred for review of the judgment
dated 29.07.2004, passed by 1st Additional District Judge,
Munger in Misc. Appeal No. 11 of 2001, affirming the order
dated 26.03.2001, passed by Sub Judge-1, Lakhisarai in Misc.
Case No. 04 of 1996, by which the learned Sub-Judge-I,
Lakhisarai, dismissed the application under Order IX Rule 13
of the Civil Procedure Code (hereinafter to be referred to as 'the
Code').
Patna High Court C.R. No.2383 of 2007 dt.31-01-2024
3/10
3. Late Sakal Ram, the male lineal ascendant/
predecessor-in-interest of the opposite parties, instituted Title
Suit No. 126 of 1988 in the court of Sub Judge-I, Munger for
declaration and confirmation of his title over the disputed land
on the ground that he inherited that land from his father, who
was a recorded raiyat in survey khatiyan. The defendant Late
Singheshwar Prasad @ Chamo Prasad, the predecessor-in-
interest of the petitioners, was the defendant. The suit was
decreed on 28.03.1992. The petitioner filed an application under
Order IX Rule 13 of the code to set aside that ex parte decree,
which was registered as Misc. Case No. 04 of 1996. That
miscellaneous case was dismissed by the Sub-Judge-I,
Lakhisarai, vide order dated 26.03.2001. The petitioner
preferred Misc. Appeal No. 11 of 2001 against the order dated
26.03.2001
and that miscellaneous appeal was also dismissed
by the 1st Additional District Judge Munger, vide order dated
29.07.2004. Being aggrieved by the concurrent orders of the
learned courts below, the petitioner preferred Civil Revision No.
1444 of 2004 before this Court, but after some arguments, that
civil revision application was withdrawn vide order dated
29.03.2005. After withdrawal of that revision application, the
petitioner preferred Civil Review No. 01 of 2005 in the Court of
Patna High Court C.R. No.2383 of 2007 dt.31-01-2024
District Judge, Munger against the order dated 29.07.2004
passed in Misc. Appeal No. 11 of 2001. The review petition was
dismissed by the ADJ, F.T.C.-V, Munger, vide his order dated
29.09.2007. Being aggrieved by the order of the learned ADJ,
F.T.C.-V, Munger, the petitioner preferred the present revision
application, which was initially dismissed. The petitioners
herein filed Civil Review No. 129 of 2013 against the order of
dismissal of the present revision and by a very detailed and
exhaustive order, the present revision was restored, vide
judgment dated 24.02.2016.
4. As such, at present, the order dated 26.03.2001
passed in Misc. Case No. 04 of 1996 by Sub Judge-I,
Lakhisarai, dismissing the application under Order IX Rule 13
of the Code which which was affirmed by learned 1 st Additional
District Judge Munger in Misc. Appeal No. 11 of 2001 vide
order dated 28.03.1992 as well as the order passed in Civil
Review No. 01 of 2005 dated 29.09.2007 by ADJ, F.T.C. V,
Munger are before this Court for legal scrutiny.
5. As discussed above, the predecessor-in-interest
of the petitioner/defendant filed an application under Order IX
Rule 13 of the Code before the Sub Judge-I Lakhisarai to set
aside the ex parte order passed in Title Suit No. 126 of 1988 on
Patna High Court C.R. No.2383 of 2007 dt.31-01-2024
the ground that he was not aware of the proceeding of Title Suit
No. 126 of 1988 and without service of summons, the opposite
party obtained the ex parte decree stealthily and fraudulently.
The service report on the process was obtained after taking the
postal peon and the peon of the court in collusion. It has been
pleaded that the service report of the process server on the back
of the summons shows that instead of summons to the
defendant's home village Rajouna, the summons was sent to the
plaintiff's village Chouki which was returned with the
endorsement that the defendant was not residing in village
Chouki. The plaintiff sent two registered envelope through the
court, the first was sent to village Rajouna which was returned
by the postal peon with a report that the addressee resides
outside. The second registered envelope was sent to the
defendant at his present address in Alkapuri, Anisabad, Patna,
but in the address of envelope, it was wrongly written the
designation of the original petitioner as officer posted in Kara
Vibhag, Gardanibagh. As a matter of fact, on the relevant date,
he was not residing in Mohalla Gardanibagh. It has further been
pleaded that the postal peon falsely endorsed that the defendant
refused to receive the envelope. As a matter of fact, the
defendant retired from the government service from the Jail
Patna High Court C.R. No.2383 of 2007 dt.31-01-2024
Department in the year 1984 and the government quarters was
vacated by him in the year 1986. The petitioner has also
mentioned that the newspaper namely 'Aatmakatha' in which
the notice was published, was neither in circulation in Patna nor
in the locality of village Rajouna. As such, the entire process
was behind the back of the petitioner. The source of knowledge
of ex parte decree was disclosed in his petition that his nephew
Dr. Bishun Narayan Sinha had gone in Ashok Dham Temple to
offer worship on 14.03.1996. The second son of the plaintiff
was selling flowers outside the temple. He informed Dr. Bishun
Narayan Sinha about that ex parte decree. Thereafter, the
appellant inspected the records and filed an application under
order IX Rule 13 of the Code. The learned courts below were of
the opinion that the petitioner/defendant was aware of the
proceeding of Title Suit No. 126 of 1988 and he knowingly and
deliberately, with an intention to delay the proceeding of the
suit, did not appear in that title suit.
6. The learned counsel for the petitioner(s)
submitted that the plaintiff obtained the ex parte decree
stealthily and fraudulently behind the back of the petitioner. As
soon as he came to know about the existence of the ex parte
decree, he filed restoration petition but the courts below
Patna High Court C.R. No.2383 of 2007 dt.31-01-2024
mechanically and without application of mind rejected his
restoration application. He has also submitted that the learned
courts below committed error in recording their orders by
mentioning that the petitioner refused to receive the notice. He
drew my attention towards the judgment of this Court dated
24.02.2016 passed in Civil Review No. 129 of 2013, which
shows that the learned Single Judge of this Court called for the
original record of Title Suit No. 126 of 1988 and he jotted down
the proceedings mentioned in the order-sheet of the Title Suit
No. 126 of 1988 in chronological order which are extracted
hereunder:-
"(i) 13.07.1988: The suit was filed.
(ii) 24.1.1989: The trial court while
exempting the plaintiff from payment of court
fee admitted the suit and directed the plaintiff
to furnish summon for notice.
(iii) 18.2.1989: Since summon was filed
without talbana fee hence order was passed to
deposit the same.
(iv) 9.3.1989: Talbana fee deposited, order
for issuance of notice passed.
(v) 6.1.1990: Despite order dated 9.3.1989,
Patna High Court C.R. No.2383 of 2007 dt.31-01-2024
summons were not yet issued to the
defendants.
(vi) 1.2.1990: Directions issued to ensure
issuance of summons.
(vii) 1.3.1990: Service report on summons
not received while the registered summons
returned with a report that the addressee had
gone out.
(viii) 11.04.1990: Service report on
summons received with report that no one by
the name resides in the village.
(ix) 5.7.1990: Plaintiff deposits fresh
requisite for registered notice. Direction
issued for its issuance, the registered notice
could not be issued in absence of subsequent
directions.
(x) 11.1.1991: Registered notice not yet
issued.
(xi) 21.2.1991: While the order records that
the service of registered notice not received,
the remark in the column records a service.
(xii) 25.3.1991: Awaiting service report.
Patna High Court C.R. No.2383 of 2007 dt.31-01-2024
(xiii) 4.5.1991: Deemed service of registered
summons recorded by passage of one month
time. Prayer for substituted service also
accepted.
(xiv) 21.9.1991: Notice published in
newspaper Hindi daily Atmakatha
(xv) 16.11.1991: Ex parte hearing fixed.
(xvi) 28.3.1992: Suit decreed ex parte."
7. The learned courts below have mentioned in
their orders that the petitioner refused the registered summons
but from perusal of the order sheet of Title suit No. 126 of
1988, it appears that there was no service report in respect of the
summons sent to the defendant through registered post. In the
order dated 04.05.1991, it has been specifically mentioned that
a petition was filed on behalf of the plaintiff to publish a
gazette/notice in daily newspaper as the service of registered
summons was not received till that date. On 21.09.1991, the
notice was published in the newspaper Hindi daily 'Atmakatha'.
That newspaper was not in circulation either in Patna or in
Rajouna, the permanent village of the defendant/petitioner and
perusal of the materials on the record shows that the order dated
28.03.1992 passed in Title Suit No. 126 of 1988 was behind the
Patna High Court C.R. No.2383 of 2007 dt.31-01-2024
back of the original petitioner. If the present petitioners are not
being provided an opportunity of being heard, they would be
deprived of their valuable right of natural justice.
8. Considering the above-mentioned facts and
circumstances of the case, the order dated 29.09.2007 passed by
Additional District Judge, F.T.C.-V, Munger in Civil Review
Misc. No. 01 of 2005, preferred for review of the judgment
dated 29.07.2004, is set aside. Consequently, the judgment
passed by 1st Additional District Judge, Munger in Misc. Appeal
No. 11 of 2001 dated 29.07.2004 and the order dated 26.03.2001
passed by Sub Judge-1, Lakhisarai in Misc. Case No. 04 of
1996, are also set aside.
9. On the basis of abovenoted observations, this
civil revision application is allowed, and Title Suit No.126 of
1988 is restored to its original number and position.
(Nawneet Kumar Pandey, J)
HR/-
AFR/NAFR NAFR
CAV DATE 23.01.2024
Uploading Date 31.01.2024
Transmission Date
