IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.2781 of 2007 1. Naresh Kahar son of late Manki Ram 2. Ram Pravesh Dusadh son of late Basudeo Dusadh 3. Mangru Ram @ Mangru Dusadh son of late Rameshwar Ram All are resident of Mohalla Sahpur, Auragnabad ward no. 16, P.S. Aurangabad Dist. Aurangabad .. Defendants-Respondents-Petitioners Versus Satya Narayan Prasad son of late Munsi Govind Prasad resident of village Murapur Nadra P.S. Khizersarai Dist. Gaya … Plaintiff-Appellant-Opposite party ------------ For the Petitioners: Mr Jitendra Prasad Singh, Advocate For the Opposite party: Mr Chitragupta Prasad, Advocate ----------- 08 05.05.2009 Heard learned counsel for the parties. 2. This petition has been filed by the defendants- respondents-petitioners under the provision of Order XLI rule 21 of the Code of Civil Procedure for re-hearing of Second Appeal No. 355 of 1987 which was allowed ex parte by Hon’ble Mr Justice S.N. Pathak vide his judgment dated 04.09.2001 after hearing only the sole plaintiff- appellant-opposite party, and without hearing the defendants- respondents who could not appear due to absence of notice to them. 3. The matter arises out of Title Suit no.42 of 1982(33/1983) which was filed by the plaintiff-opposite party for permanent injunction (mandatory and prohibitory) directing the defendants-petitioners to remove the structure standing over the land of the plaintiff detailed in schedule II of the plaint and restraining them from making any new construction and disturbing the possession of the plaintiff as well as for cost. 4. The said suit was dismissed on contest by the learned Additional Munsif II, Aurangabad vide his judgment and decree - 2 - dated 23.02.1984 rejecting the claim of the plaintiff. Against the aforesaid judgment and decree of the trial court, the plaintiff-opposite party filed Title Appeal no.20 of 1984 which was also dismissed on contest by the learned District Judge Aurangabad, vide his judgment and decree dated 20.07.1987. 5. Against the judgments and decree of both the learned courts below the sole plaintiff-opposite party filed Second Appeal No. 355 of 1987 in this High Court on 09.11.1987 whereafter on 24.02.1988 the said second appeal was admitted, substantial question of law was framed and notices were, for the first time, directed to be issued to all the respondents, namely, respondents no. 1 to 10 by registered post, acknowledgement due and records were called from the lower court. 6. It further transpires that for three years thereafter neither service report was returned nor any step was taken for fresh service of notice by any mode for the said respondents which would be apparent from the office note of the second appeal dated 21.08.1991 and 30.08.1991. However, this court vide its order dated 02.09.1991 directed that let appeal notices on respondents no.1 to 10 be accepted as valid. On the basis of the said order the notices on respondents no.1 to 10 were deemed to have been validly served and the second appeal was placed for final hearing on 20.11.1995 but when no one appeared on behalf of the appellant, the second appeal was dismissed for default. 7. That abovementioned second appeal was subsequently restored, vide order dated 18.12.1995 passed in MJC no. - 3 - 2521 of 1995 but notices were not sent to the respondents either in the aforesaid MJC case or in the said second appeal after its restoration and consequently the respondents never appeared in the second appeal and the MJC. However, the said second appeal was again listed for hearing and Hon’ble Mr Justice S.N. Pathak after hearing learned counsel for the plaintiff-appellant-opposite party on 28.08.2001 and 30.08.2001 reserved the judgment which was finally delivered on 04.09.2001 allowing the second appeal and setting aside the judgments and decree of both the learned courts below. 8. It transpires that against the aforesaid ex parte judgment and decree of this court the petitioners who were respondents in the second appeal filed Civil Review no. 149 of 2004 claiming that notices of the second appeal were never served upon them and it was heard ex parte merely on the basis of order dated 02.09.1991 accepting notices sent by registered post as valid although neither the said notice was ever served upon them, nor any notice even by ordinary process was sent nor any step for substituted service of appeal notice was taken and they had absolutely no knowledge or information about the second appeal. The other point taken by the petitioners was that respondents no.1,2,4,5 and 6 died in the years 1996,1995,1996,1991 and 2000 respectively but no step for substitution of their heirs were ever taken by the plaintiff-appellant in the second appeal. 9. However, the said Civil Review petition was dismissed by a bench of this court vide order dated 05.10.2007 holding that review can only be granted on limited grounds mentioned in XLVII - 4 - rule 1 of the Code of Civil Procedure and on no other ground and in the said case no such ground was involved. It was also held that so far issue of non-service of notice is concerned, it was open to the petitioners to have resorted to the specific provisions of Order XLI rule 21 of the Code of Civil Procedure under which they could have applied to this court for re-hearing of the appeal but it can not be a ground for filing a review petition. Regarding the death of five respondents during the pendency of the second appeal it was held that the same is an issue of fact which has been traversed by the opposite party in his counter affidavit and it can not be considered in review jurisdiction for deciding the correctness of the said facts and in any case the same was not a good ground under review jurisdiction although it may be raised in other forums as may be available to the petitioners. In these circumstances, while dismissing the civil review petition this court specifically held that its dismissal would not stand in the way of the petitioners availing of any other remedy available to them under the law. 10. In the said circumstance, the petitioners who were defendants-respondents have filed the instant MJC no. 2781 of 2007 under the provision of Order XLI rue 21 of the Code of Civil Procedure for re-hearing the second appeal after setting aside the ex parte judgment passed in the second appeal. The same very points have been raised by the petitioners in the instant MJC petition also in view of the specific observation of the court disposing of their civil review petition. 11. So far the question of non-service of appeal notices upon the respondents is concerned, it is quite apparent that the - 5 - notices were sent to the respondents only once in the second appeal and that too by registered post vide order dated 24.02.1988. The scheme of Order V of the Code of Civil Procedure specifically provides that such notice must be sent by summons vide Rules 9 to 19 thereof and the court shall, in addition to or simultaneously with the issue of summons for service in the said manner may also direct notices to be served by registered post, acknowledgment due to the defendant as per provision of Rule 19-A of Order V of the Code of Civil Procedure, if it is deemed necessary by the court. But no such necessity has been recorded or found. 12. In view of the aforesaid provisions of law it is quite apparent that notice by registered post can not legally be an alternative to summons by ordinary process, rather it is merely an additional mode of service of notices which can be used either simultaneously with summons by ordinary process or in case of failure of service of summon by ordinary process. But in the instant case no step was ever taken for sending notices to the respondents by ordinary process in the second appeal. Furthermore there was no material before this court to be satisfied that there was any reason to believe that the respondents were keeping out of the way for the purposes of avoiding service and in these circumstances, specific provision of Rule 20 was provided in Order V of the Code of Civil Procedure for notice by substituted service, but even no such procedure was adopted in the second appeal. 13. Although the appellant-opposite party has - 6 - appeared in this MJC case and has filed a counter affidavit but has failed to show by any valid material that notices of the second appeal were duly served upon the respondents-petitioners nor the record of the second appeal falsifies the claim of the respondents-petitioners that notices were never served upon them and they had no knowledge about the second appeal. Hence, it is hereby held that neither proper step for service of notice of second appeal upon all the respondents was taken in the second appeal nor the notices by registered post were ever served upon them nor they had any knowledge or information of the second appeal. 14. So far the question with regard to the death of respondents no.1, 2, 4, 5 and 6 is concerned, the respondents have specifically given their respective dates of death i.e. 10.04.1996, 09.06.1995, 13.09.1996, 10.03.1991 and 17.06.2000 in paragraphs 14 and 15 of the MJC petition. On the other hand, the appellant-opposite party in paragraph 10 of his counter affidavit has denied the said dates of death and has stated that all of them had died after the judgment in the second appeal which was passed in the year 2001, but he has not stated either the date or the month or the year of their deaths. 15. Furthermore, the order sheet of the Execution Case no. 3 of 2004, which is pending before the learned Munsif of Aurangabad for execution of the impugned judgment and decree marked as annexure A to the counter affidavit, clearly shows that on 07.05.2005 the plaintiff-appellant-opposite party had himself filed a petition in the Executing court for substituting the heirs of the aforesaid respondents - 7 - and had admitted that there was delay in the filing of the application for substitution and since no objection was raised by the defendants- respondents, the said substitution petition was allowed by the executing court on 02.09.2005. It may be noted in this connection that for substitution of the heirs of a party to the execution proceeding the period of limitation is three years and hence admittedly the said respondents had died prior to the year 2002. 16. In addition to the above facts, plaintiff-opposite party has failed to give the date, month or year of deaths of the said respondents nor has he even produced substitution petition filed by him on 07.05.2005 in the executing court to support his claim. In the said circumstance the exact dates of deaths of the concerned respondents given by the respondents-petitioners on affidavit in this MJC petition and also in the civil review petition have to be accepted in view of vagueness and also concealment of facts in the claim of the opposite party who was plaintiff-appellant and it was his duty to take steps for substitution of the heirs of the deceased-respondents in the second appeal. 17. In the aforesaid facts and circumstances, this MJC petition is allowed. Ex parte judgment dated 04.09.2001 passed in Second Appeal No. 355 of 1987 is hereby recalled and the said Second appeal is directed to be re-heard. (S.N.Hussain,J) shahid