IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1502 of 1997 RAJENDRA PRASAD & ORS Versus RAJ KUMAR GUPTA & ORS ----------- 20 17.7.2008 Head Mr. Abhimanyu Sharma learned Counsel for the petitioners and Mr. Manoj Kumar Ambastha Counsel for the opposite parties. This civil revision application is directed against the appellate order dated 11.7.1997 passed in Misc. Appeal No. 17/1996 affirming the order dated 7.6.1996 passed in Misc. No. 18/1990 whereby and whereunder the prayer of the petitioner for restoration of the suit has been rejected on the ground that the petitioners had full knowledge who in fact were also served with the summons of connected Title Suit No. 27/1990 but did not choose to appear and contest and consequently there was no error in deciding the suit ex-parte by passing a judgment and decree dated 9.7.1990. Facts, which are not in dispute, would only goes to show that it is one of the rare case where the suit got disposed of in a period of less than four months, the date of filing of the suit being 27.3.1990 and the decree having been passed on 9.7.1999. Here is a classic case where the suit was filed on 27.3.1990 2 and on 28.3.1990 an order for appointment of pleader commissioner was passed and a pleader commissioner was also appointed. The said pleader commissioner was issued a writ on 6.4.1990 and he prepared his report on 07.4.1990 and submitted the same on 11.4.1990. Till this day, there was no proof of service of summons and/or appearance of the defendant- petitioners in the suit and for the first time it came on the record of the Court below on 17.4.1990 that the petitioner/defendant had refused to accept the notices. Surprisingly, on the same day, another notice is said to be issued for the purpose of consideration of injunction to the petitioners and this notice while continuing the interim injunction is reported to be again served on them (petitioners) by way of their refusal to accept the notice. That was not the end of the matter. Infact thereafter on the next day i.e. on 15.6.1990, the Court below passed an order for ex- parte hearing fixing the case for adducing evidence on 18.6.1990 and recording of the evidence was also completed on 18.6.1990 and 19.6.1990 and the arguments were heard and concluded on 21.6.1990 and thereafter the case was fixed for delivery of judgment on 2.7.1990. It is only on 02.07.1990 that the petitioners had appeared on their own and sought 3 leave to contest the matter by taking a plea that they had never been served with summons. At that stage the petitioners were shown the doors of the Court by passing an order that since the case was fixed for judgment their prayer for recalling the order opf ex- parte hearing could not be recalled. The petitioners after the judgment and decree of the Trial Court dated 9.7.1990 had filed Misc. Case No. 18/1990 under order 9 Rule 13 of the Code of Civil Procedure which came to be dismissed on 7.6.1996 and as noted above the appeal of the petitioners was rejected on 11.7.1997. The Trial Court while considering the Misc. Case No. 18/1990 has basically proceeded on the basis that the two witness of the petitioner namely Prabhu Sao and Sheonandan Prasad in their deposition had made certain incorrect statements. The Court below infact had gone to hold that their signature on refusal of the service report of the summon by the petitioners was correct but had rejected that part of their evidence where it was stated by both of them that as a matter of fact, the postal peon never went to serve the notices. The report of postal peon showing that the postal peon had made an attempt to serve the registered notice on the 4 petitioners has been again relied by examining the concerned postal peon who however failed to explain as to how he could identify the petitioners in the village and whether the persons who had refused were actually the petitioners themselves. Miscellaneous case therefore had been dismissed only on the aforementioned ground by an order dated 7.6.1996 when the petitioners had assailed the same in the miscellaneous appeal, the Appellate Court by its order dated 11.7.1997 had after discussing the same evidence, came to a conclusion that the summons were duly served upon the petitioners firstly by process of server, secondly through registered letter and also by pleader commissioner. Learned Counsel appearing on behalf of the petitioners in this context therefore has submitted that even if it be accepted that in a span of less than four months, the petitioners were served with the notice of the suit in question through either of the three modes yet the order passed by the Court below on 15.6.1990 fixing the case for ex-parte hearing would go to show that the procedure and safeguard laid down under C.P.C. had not been followed. In this context has reliance has been placed on a judgment of this Court in the case of Dinanath Thakur Vs. 5 Dinanath Sao reported in 2005 (1) PLJR 472 wherein this Court after relying the judgment of the Apex Court in the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh reported in AIR 2002 SC 2370 had held that the provision of Order 5 Rule 17, 18 & 19 and also Order 9 Rule 6 specifically provide that the date appointed for hearing in the suit on which the defendant is summoned to appear is a significant date and there has to be a conscious application of mind on the part of the Court to satisfy itself on the issued of service of summons before fixing the suit for ex- parte hearing and a default or casual approach on the part of the Court may result into debarring defendant from availing his valuable right to take part in the hearing of the suit resulting into a defendant suffering an ex-parte decree or proceeding for no fault on his part. The aforementioned principles of law being well settled by the Apex Court itself in the Sabharwal case (supra) when this Court would test the order dated 15.6.1990 it would find that on 15.06.1990 infact a very short and cryptic order was passed in the following terms : - ^^fyf[kr fyQkQk dk rkehyk bUdkjh izkIr gqvk gSA mlds okn Hkh izfroknh vkt rd mifLFkr 6 ugha gq, gSA vr% okn ,d if{k;s esa lquokbZ gsrq fuf'pr fd;k tkrk gSA fnukad 18-6-90 dks vfHkys[k ,d if{k, lquokbZ gsrq j[kk tk;kA** In the opinion of this Court, the order dated 15.6.1990 does not satisfy the test as laid down by this Court in the case of Dinanath Thakur (supra). As indicated above, the entire effort of the Court was to dispose of the suit in a hurried manner. As a matter of fact the heaven was not going to fall if after receipt of the report of refusal of service of notice dated 14.6.1990, which in fact came to the notice of the Court for the first time on 15.6.1990, the Court got itself satisfied that despite service of notice by different modes, the petitioners were avoiding appearance. Infact it was only after recording such satisfaction the Court could have fixed a date of ex-parte hearing. That having been not done, this Court cannot approve the order leading to ex-parte order passed on 15.6.1990. The subsequent events leading to rerecording of evidences on 18.6.1990 and 19.6.1990 and completion of argument on 21.6.1990 are only indicative of the circumstances showing the uncanny speed in which the Court below proceeded to decide the suit and consequently it cannot be said that the grievance of the petitioner as against the disposal of 7 the suit by an ex-parte judgment is unfounded. This Court also cannot approve the reasons of acceptance of service of notice through the pleader commissioner because the pleader commission had not personally met any of the petitioners and his evidence was only to the extent that after he received a writ from the Court for holding local inspection on 6.4.1990, he had visited the place either on 6.4.1990 itself or on 7.4.1990 because his report was prepared on the same day i.e. on 7.4.1990 and his evidence on record is only to the effect that he had sent information to the petitioners through a Dafadar. The said Dafadar has not been examined and therefore at least on the basis of the version of pleader commissioner, the service notice could not have been taken to be completed. Added to it when this Court has also found that the two witnesses examined by the petitioners namely AW-1 and AW-2 had clearly stated that as a matter of fact the process server had never gone to the house of the petitioners the same ought to have been taken into consideration on their face value in the true spirit. Infact both the Trial Court and the Lower Appellate Court have passed their order by relying on the evidence of these set of persons which to say the least was in favour of the petitioners. 8 In the given set of facts and circumstances when a substantial right of the petitioner was defeated only on account of an ex-parte hearing conducted in a most vitiated and perfunctory manner, this Court has no hesitation in setting aside both the impugned orders and remitting the matter back to the Trial Court for disposing the Title Suit No. 27/1990 in accordance with law. This Court however is not unmindful to the long litigation thrust upon the plaintiff-opposite parties and therefore in order to compensate them, this Court would direct that they should be paid a sum of Rs. 5,000/- by the petitioners within a period of three months from the date of receipt/production of a copy of this order. Counsel for the petitioner undertakes that the petitioners will deposit the amount of Rs. 5,000/- in the Court below within the aforesaid period which may be withdrawn by the Counsel for the plaintiffs in the Court below for its being paid to the plaintiffs. With the aforesaid observations/direction, this application is allowed. Rsh (Mihir Kumar Jha, J.)