IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1697 of 2006 MOHAMMAD WOJIR AHMAD, Son of Sami Ahmad, resident of Mohalla Chamelichak, P.O. & P.S. Jagdishpur, District – Bhagalpur. …. Petitioner/Appellant/Petitioner. Versus ASHMAT ARA, Daughter of late Wadiuj Joha, resident of Mohalla Quaziwalichak, P.O. City Post Office, Bhagalpur P.S. Kotwali, District – Bhagalpur. … Opp. Party/Respondent/Opposite Party. For the petitioner : - Sri Shashi Shekhar Dwivedi, Sr. Advocate. Sri R.S. Dwivedi, Advocate. Sri Ranjan Kumar Dubey, Advocate. Sri Shailendra Kumar Dwivedi, Advocate. For the O.P. : - Sri Ajay Kumar Singh, Advocate. ----------- 03/ 14.05.2009 I have heard Sri Shashi Shekhar Dwivedi, Senior Advocate for the petitioner and Sri Ajay Kumar Singh, Advocate for the O.P. An Eviction Suit filed by the O.P. bearing No. 29 of 1996 and that was pending before Munsif, IInd Court, Bhagalpur. As appears from the findings recorded by the original trial court and the appellate court, the notices were issued through different modes and the court recorded its satisfaction that the service of summons through ordinary process and that through the registered envelope were not satisfactory and directed the publication of the notice in a News Paper. Accordingly, it was published. After a few dates of the publication of the notice in the desired mode, lastly the suit was put for hearing ex-parte and accordingly, - 2 - the decree of eviction was passed ex-parte, hence the present revision petition. Learned Senior counsel for the petitioner has relied upon AIR 1972 Patna 142, AIR 2002 Supreme Court 2370, 1998 (2) PLJR 294 and, lastly, on 2005(1) BBCJ 257 to submit that for proceeding ex-parte the notice about the pendency of the suit was not relevant rather the date or knowledge of hearing of the suit was relevant and if that was not apparent from the record, then the hearing and decreeing a suit was not just and proper. It was further contended that the court has not recorded satisfaction about the service of the summons and if it is not recorded the satisfaction and has proceeded on to direct the issuance of other processes or to fix the case on hearing ex-parte, even that order passed on hearing the suit ex-parte, could not be sustainable. In support of the above contention the three decisions rendered by this Court reported in three different journals cited above have been placed before me. The learned counsel for the O.P. has only emphasised the concurrent findings recorded by the trial court and the appellate court. On the satisfaction about the - 3 - non-service of the summons the knowledge of the petitioner about the pendency of the suit and its hearing may be sufficient for non-interference by the court in exercise of its revisional jurisdiction. Because Sri Dwivedi has laid much stress upon the provisions of Order V Rule 20 of the CPC, which requires the court to record its satisfaction about the defendant keeping himself out of the court’s way for the purposes of evading notices issued by the Court. I have considered the decisions of this Court on the above point. The first decision is reported in 1998(2) PLJR 294, which was placed before me by Sri Dwivedi was rendered in the case of Wakil Bhagat Vs. Rambriksh Bhagat and others. The order by which the suit was put for hearing ex-parte by the trial court in the case of Wakil Bhahat has been copied by the learned Judge, who passed the above judgment and if one could consider that part of the order in paragraph 4 of the report, one could find that there is complete absence of recording of satisfaction about the defendant keeping out of the court’s way. The summons could be served upon him and that could be the distinctive feature of the present case to that of case of Wakil Bhagat. - 4 - Similarly the case reported in 2005(1) BBCL 259 Dinanath Thakur Vs. Dinanath Saw also suffers from the same deficiency as was said by the learned Judge, who delivered the judgment in 1998(2) PLJR 294. As such these two decisions appear completely discretionary on their special facts. As regards the third decision of this Court reported in AIR 1972 Patna 142, the same principle has been laid down, which had been noticed by the two decisions discussed above. Thus, what appears for the present consideration is whether the learned Munsif while ordering the suit to be heard ex-parte had really recorded his satisfaction as required under law. I was referred to certain orders passed by the learned Munsif in the above context by the learned Senior counsel appearing for the petitioner. One of the orders is dated 3.5.1997 which records that the execution report on process issued under ordinary course was received and the court below recorded “ larks"ktud ugha gSA** Learned counsel for the O.P. was arguing that it was not proper recording of the satisfaction as satisfaction could never be dissatisfaction. In my opinion, the satisfaction could be recorded either by refusing or - 5 - accepting. If it was not found satisfactory, it could not be said that notice was properly sent as was recorded by the learned Munsif in order dated 3.5.1997. If one could peruse the orders passed by the learned Munsif on 3.5.1997, again on 22.9.1997 and that of other subsequent dates, one could very well justify that there could be all circumstances to notice that the petitioner was definitely evading the service of summons. As submitted by the learned counsel for the Opposite party that there is a concurrent finding recorded by the two courts below, this court does not want to interference with the same in its revisional jurisdiction. The ex-parte order of eviction was passed noticing the above developments and incidents by the court below and therefore, I do not want to set aside that order also. The revision petition is dismissed. DKS/ (Dharnidhar Jha, J.)