MISC. APPEAL No.19 OF 2003 ******* Against the order dated 4th December, 2002, Passed by 01st Subordinate Judge, Patna, in Miscellaneous Case no. 23 of 1998. ******* BRIJ NANDAN PRASAD------------Appellant Versus UCHIT SINGH------------------Respondent ******* For the Appellant : M/s Shashi Shekhar Dwivedi, Ranjan Kr. Dubey, Sangeeta Sharma & Rakesh Chandra For the Respondent : Mr. Sushil Kr. Mazumdar. ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Heard learned counsel for the appellant and respondent. 2. This appeal has been preferred by the appellant against order dated 04th December, 2002 passed by Subordinate Judge, First , Patna in Miscellaneous Case no.23 of 1998 dismissing the same on contest and refusing to set aside ex- parte judgment and decree passed in Title Suit no.589 of 1990 2 in the year 1993. 3. The relevant and admitted short facts of this case is that respondent had filed the suit bearing no. 589 of 1990 for specific performance of contract against the appellant who did not contest the suit. It was decreed ex-parte and the execution proceeding was initiated. As per appellant he got information of the suit and filed the Miscellaneous case seeking relief for setting aside the decree on the ground that he had not been served with any type of summon or notice at any point of time, had sufficient cause for non-appearance / participation in the suit. There was another suit between the parties at Gaya wherein the plaintiff-respondent was defendant and he also filed written statement there. It is the case of respondent-opposite party that since beginning the appellant had knowledge of the suit, summons were duly served by all possible means, through process server of the court, registered post and by publication in daily news paper, Hindustan Times. Further in written statement filed in the suit at Gaya he had annexed the judgment and decree of the suit but no step was taken by the appellant . He does not deserve condonation of delay of five years caused in filing of the Miscellaneous case. 3 4. Miscellaneous Case no.23 of 1998 was hotly contested. Both the sides produced oral and documentary evidence. On behalf of opposite party-respondent following were the documents: “ Exhibit-A. - Service report of T.S. 589/90 Exhibit A/1- Paper Publication Exhibit-B- Power Exhibit-C- Inspection Slip Exhibit-C/1- Service report of Process Server Exhibit-D- Written Statement Exhibit-E- Forwarding Letter with objection. Exhibit-E/1- Notice without objection Exhibit-F - Writing and signature of Braj Bihari Singh, Adv. on power.” 5. It was also case of the appellant that on service of notice in execution proceeding he got the record inspected soon thereafter filed in Miscellaneous Case. On behalf of the appellant there are two documents, Exhibit-1 Vakalatnama and Exhibit-2 Inspection slip filed on 06.08.1998. The plaintiff- respondent has also taken a view that in 1993 on behalf of the appellant there was an inspection slip by engaging another lawyer and he, by virtue of that, also had information of suit and its proceeding but inspite of that no step was taken. All such completely disentitles him for the relief claimed. 6. During the course of argument learned counsel for the appellant, by placing reliance upon decision of the Apex 4 Court in the case of G.P. Srivastava V. R.K. Raizada, (2000) 3 S.C.C. 54; submitted that unless it is shown that defendant has specific information by service of notice about the date of hearing ex-parte decree cannot sustain. In paragraph 7 of the judgment the Apex Court has said like this: “7. Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that earlier the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a 5 case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” 7. Learned counsel further relied on the decision of the Apex Court in the case of Sushil Kumar Sabharwal V. Gurpreet Singh, A.I.R. 2002 S.C. 2370; wherein in paragraph 11 it has been held as such : “11. The High Court has overlooked the second proviso to Rule 13 of O. 9, C.P.C., added by the 1976 amendment which provides that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff‟s claim. It is the knowledge of the „the date of hearing‟ and not the knowledge of „pendency of suit‟ which is relevant for the purpose of the proviso above said. Then the present one is not a case of mere irregularity in service of summons; on the facts; it is a case of non-service of summons. The appellant has appeared in the witness-box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff‟s claim which he did not avail and utilize.” 6 8. Further reliance has been placed on a decision of this Court in the case of Parshuram Pathak V. Smt. Shiv Kumari Kuer, 2001 (1) P.L.J.R. 428; wherein also almost similar view was taken. 9. On the basis of all the above decisions it was contended that there is nothing on record to show any valid service upon the defendant appellant. Undisputedly, the process server, who is said to have visited the house of the appellant along with summons, never met the appellant but as per his report marked Exhibit-C/1 notice was hanged on the wall. There is further nothing on record by way of exhibit to show that any step was taken for summon on defendant- appellant through registered post. No doubt, there is paper cutting to show that notice was published in the newspaper but again there is nothing on record to show that defendant had any such knowledge. So far filing of written statement in another case annexed with copy of ex parte judgment and decree is concerned, it is the case of appellant that he was fighting that case through his counsel and had no occasion to go through such papers. This much he had stated by examining himself as 7 A.W.1 also. 10. Learned counsel for the plaintiff-respondent contends that there was proper service upon the defendant, even by registered post but in absence of any paper brought on the record of the Miscellaneous Case by way of postal receipt, endorsement of postal peon, if notice was returned unserved or refused or on any other count it is difficult to accept that any step for notice through registered post was taken. It is also vehemently contended that notice was published in newspaper and it is to be presumed that defendant must have gone through it. All such presumption are rebuttable. The decision of Apex Court in the case of Basant Singh V. Roman Catholic Mission, 2002 (4) P.L.J.R. 186 ; reliance whereon has been placed by learned counsel is not applicable in this case. Before the Apex Court in the above case there was ample evidence to show that notices through registered post were sent and Court was convinced that notice was served only thereafter without any order of the trial court notice was published in newspaper that was nothing but irregularities in notice and on that point the ex-parte decree was not liable to be set aside but here, in the instant case, as stated above, there is nothing to show that any 8 step was taken for service of summons through registered posts, so there is no reason to accept service of summon by such means. 11. There is one document by way of Exhibit-B, that is, the Vakalatnama said to have been executed by the appellant in the year 1993 the appellant has simply denied filing of such Vakalatnama by him and the signature thereon. None of the parties took any step to get the alleged signature of the appellant thereon compared with other admitted signature. In this regard it is submitted by learned counsel for the appellant that he is to simply deny. It was the duty of respondent opposite party to get the same examined by expert whereas just reverse is the contention of learned counsel for the respondent. According to him he has brought the power on record and it is the duty of appellant to specifically get the same examined if he has denied the signature. 12. From the impugned order it appears that court below though heavily relied upon this document but also was not very much keen to do some personal comparison with specific admitted document. Signature of the appellant on this document, Exhibit-B, if compared by naked eyes with his 9 signature on deposition as A.W.1. Prima facie with certain natural variation appears to be same but in absence of any scientific test to arrive at any definite conclusion. Had either of the side taken pains at appropriate stage, position could have been different. 13. It is also to be taken care of that original suit was filed in the year 1990, already travelled to twenty odd years without any positive result. If at this stage, the case is remitted, for such test etc. it may cause further prejudice and loss to both the sides besides undue encumbrance upon the judicial system. In that view of the matter, it seems desirable that ex-parte decree of the trial court be set aside and appellant be given an opportunity to file his statement, contest the suit but at the same time none of the parties be given any room for causing further delay and simultaneously the appellant must compensate the loss causes to the respondent as well as judicial system, for the delay caused and prima facie laches on his part. 14. However, in view of the above, this appeal stands allowed subject to cost of Rs.25,000/-, out of which Rs.5,000/- shall go to High Court Legal Services Authority and Rs.20,000/- shall be paid to the plaintiff-respondent. The 10 amount must be paid within thirty days from today. Any failure in compliance shall be treated as dismissal of this appeal. Party shall appear before the court below on 20th Augusts, 2010 and the defendant appellant shall file his written statement, documents relied upon and list of witnesses, if any, positively within fifteen days of appearance on 20th August, 2010. The Court below is directed to dispose of the suit preferably within six months even by proceeding on day to day basis. Office is directed to transmit the lower court record along with a copy of this order to the court concerned positively. (Akhilesh Chandra, J.) Patna High Court, The 21st July, 2010. AAhmad/ (N.A.F.R.)