IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1150 of 2006 ALOK KUMAR @ ALOK KUMAR SINGH Versus BIBHA SHARMA & ORS. ----------- 4 12.12.2008 Heard Mr. Sidheshwari Prasad Singh, learned senior counsel for the defendant-petitioner and Mr. Ashok Kumar Chaudhary, learned counsel appearing on behalf of the plaintiff-opposite parties nos. 1 & 2. While much can be said about the prospect of the impugned order, which in effect only rejects the prayer of the petitioner to recall an order fixing the suit for ex- parte hearing, this much remains an admitted fact that the petitioner is employed as a Medical Representative in Aristo Farmaceutical and has been posted always outside Bihar. Such plea of having thus no notice of the suit in question to the petitioner cannot be disbelieved even though the other family members of the petitioner are said to be residing in the city of Patna itself. It has to be born in mind that the spirit of the Order V Rule 10 & 11 taken together would envisage personal service of notice on the defendants and therefore, if the petitioner was in a position to demonstrate that such summons were not served on him, the Court below ought to have accepted the plea and allowed the petitioner to contest the suit on merit. To that extent, the submission of Mr. 2 Singh also get support from the information pertaining to service of notice issued by the Court wherein it has been reported that there is no service report in the name of the petitioner in the order-sheet up to 11.12.2003 and that in fact no order was passed by the Court on 31.12.2003. Mr. Ashok Kumar Chaudhary, learned counsel for the plaintiff-opposite parties however while seeking to support the reasonings in the impugned order has submitted that the plea of the petitioner that he was posted as Medical Representative and was never residing in the town of Patna so as to have no knowledge of the suit in question, is only fit to be rejected because the petitioner is contesting three other proceedings in the same Court being Title Suit No. 94 of 1980, Misc. Case No. 3 of 1998 and Execution Case No. 1 of 1998 wherein the petitioner has been represented and his pairvi is being looked after by his father. He has also referred to certain statements of the father of the petitioner showing that he had a definite knowledge of the proceedings. Mr. Chaudhary has also come out to support the impugned order by taking a plea that similar application filed by the father of the petitioner and elder brother of the petitioner were also rejected by the court below by an order dated 17.3.2005 and 14.9.2005 respectively and 3 they have become final between the parties. Mr. Chaudhary has finally submitted that it is the opposite party nos. 1 & 2 the grand-daughters who have to face ire of the delaying attitude of the petitioner who was definitely watching the proceedings and has appeared conveniently when he had realized that the suit could be disposed of ex-parte. This Court having taken into consideration the aforementioned aspects is of the opinion that there is no proof of service of summon on the petitioner. If the Court has proceeded to decide the matter on the constructive knowledge by believing that the father of the petitioner must have informed the petitioner as with regard to the pendency of this case, the presumption brought under Order V Rule 19A on account of non-return of the acknowledgment sent along with the registered cover is also a rebuttable presumption and can always be assailed by the person by taking a plea that such registered cover was never served on him. Nothing has been brought on record by way of certificate from the postal authorities that as a matter of fact the registered cover was served on the petitioner. Therefore, when service of summon on the petitioner under either of the mode is not free from doubt and no step for substituted service has been taken, it cannot be said that the 4 summons were validly served on the petitioner. That being so, this Court would find it difficult to sustain the impugned order. It is however found that the impact of setting aside of the impugned order would be that the opposite party nos. 1 & 2, the successors of the original plaintiff residing in the city of Jamshedpur who had contested the suit to a considerable extent by completing their evidence, would be put to real harassment and inconvenience. As all this would happen to only enable the petitioner to contest the suit, the petitioner must suitably compensate such loss of the plaintiffs, the present opposite party nos. 1 & 2 to this application. In view of the fact that the case will now go back to the stage of the suit i.e. prior to 23.5.2003, this period of five years can be only compensated by the petitioner if he pays a sum of Rs. 10,000/- (ten thousand) which is to be paid within a period of one month from the date of the receipt/production of a copy of this order. It is also made clear that the benefit of this order will be confined to the petitioner alone and the father of the petitioner and brother of the petitioner, who stands debarred and whose application in fact had also stood dismissed, will not get benefit of this order. The petitioner upon payment of a sum of Rs. 10,000/- within a period of one month as indicated 5 above, must file his written statement in next sixty days failing which his written statement will not be taken into account. The plaintiffs thereafter would be called upon to complete their evidence within a period of four months and the contesting defendants including the petitioner must complete their evidence within a period of next four months. The trial court must make its all possible effort to dispose of the suit within a period of one year from the date of receipt/production of a copy of this order. With the aforementioned observations and directions, this civil revision application is allowed. Rsh (Mihir Kumar Jha, J.)