fB •-< ^[ofcl^ HIGH COURT OF CHHATTISGARH AT BILASPUR\^' ^ W.P. C227') No. 1957 of 2009 Deepak Kumar Budhadev Vs. Vikrant Singh Post ofpronouncement ofjudgment and orders on^/06/2009. iiiUBB ••;SJ^iIgei:|!BK; 1 !';"1" s3s^»^^..-.^^^^assagr^^ ^B^^^^ ^^ mpH COURT OF CHHATTISGARH AT BILASPUR W.P. (227)No: 1957 of2009 Petitioner Applicant Defendant Respondent Non- applicant Plaintiff Deepak Kumar Budhadev, aged about 51 years, Editor Dainik Dava, Gandhi Chowk, Rajnandgaon, Tah. & Distt. Rajnandgaon (CG). Versus Vikrant Singh, aged about 29 years, S/o Shri Sidharth Singh, Agriculturist & Businessman, R/o Ward No. 3, Khairagarh, Tah. Khairagarh, Distt. Rajnandgaon (CG). Writ Petition under Article 227 ofthe Constitution oflndia (Sinele Bench: Hon'ble Mr. N.K. Aearwal, J.) Present : Shri B.P. Gupta, Advocate for the petitioner. Shri K.A. Ansari, Sr. Advocate with Shri K.S. Ansari, Advocate for the respondent. ORDER (Passed on 3 ^ day ofJune, 2009) 1. The instant petition has been directed by the petitioner feeling aggrieved by the order dated 20.02.2009 (Annexure P/l), passed by the District Judge, Rajnandgaon, in MJC Case No. 18/06, whereby, the application under Order 9 Rule 13 read with Sections 151 and 141 of CPC, filed by the plaintiff/respondent has been allowed and exparte orderpassed on application under Section 24 ofCPC, filed by the petitioner, has been restored to its original number for decision afresh after hearing both the parties. - .2. The brief facts in nutshell are that, the plaintiff/respondent filed a civil suit against the pstitioner for damages aniounting to Rs. 50,000/- on the ground'ofdefamatory publication by the petitioner in the court 6f Civil Judge, Class I, Khairagarh. 3. The petitioner filed an application before the District Judge, Rajnandgaon, under Section 24 of CPC for transferring the case yfS'SSS!VatS£fS:Sps'^lwy3Sl3u!' .AiS ^ from Khairagarh to any other court on the ground that the petitioner is threatening by the plaintiff/respondent, who is a president of Nagar Panchayat, Khairagarh. Notice issued by the court ofDistrict Judge, Rajnandgaon, which was as per service report of Process Server, served directly upon the brother ofthe respondent/defendant in the office of Nagar Panchayat, Khairagarh. Ori the date of hearing, as the respondent/defendant was absent and, therefore, the matter was heard exparte and vide order dated 02.12.2006 (Annexure P/4), exparte order, transferring the case from Khairagarh civil court to Rajnandgaon civil court in the court of IInd Civil Judge, Class I, has been passed. That, this exparte order was assailed by the plaintiff/respondent on the ground that the summons ofthe case was never duly served upon him and as per service report, the summons was served upon the brother of plaintif£/respondentin his office i.e. Nagar Panchayat, Khairagarh, which was not the home address of the plaintiff/respondent nor service was tried to be efEected personally upon the plaintifi7respondenf and, therefore, the service report of notice cannot be said to be valid service upon the plaintif£/respondentin tenns ofOrder 5 Rule 15 ofCPC and also the brother never infonned him about such receipt dfnotice and he only came to know about such transfer upon information received from his counsel atKhairagarh on 05.12.2006. . That, the trial court, after hearmg both the parties, on appreciation of material on reeord, evidence led, came to the conclusion that the exparte order deserves to beset aside, and set aside the exparte order the case was restored to its original number for hearing afresh. 7. 8. The main contention raised by Shri B.P. Gupta, counsel for petitioner is fhat as per Order 5 Rule 15 of CPC, service ofnotice has been effected upon the brother of plaintiff/respondent who is admittedly a member of family and residing with the plaiatiff/respondent and, fherefore, the finding recorded by the court below that summons of fhe case was not duly served and order passed, is perverse, withoutjurisdiction and deserves tobe set aside. Per contra, Shri K.A. Ansari, leamed counsel appearing for the plaintiff/respondent submits that, first of all, the petitioner deliberately did not gave the plaintiffrespondent's registered address ofresidence in the application filed by him under Section 24 ofCPC and secondly, summons were not served upon the brother of the plaintiff in terms of Order 5 Rule 15 of CPC inasmuch as neither it was tried to be effected on the petitioner personally nor it was recorded in the service of notice that the plaintiff/respondent was absent from his residence at the time when the service ofsummons is sought to be effected upon him at his residence and there is no likelihood of his bemg found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf and, therefore, service effect was made, and order passed by the trial court is a well reasoned order, passed on appreciation of fact and has been passed by applying the correct preposition of law, the petition is misconceived and deserves to be dismissed. I have .heard the counsel for both the parties, perused the record and impugned order. Section 24 of CPC deals with general power of transfer and withdrawal ofthe court. Section 24 (1) reads as under: <»t- 9. - ^ "On the application ofany ofthe parties and after notice to the parties and after hearing such ofthem as desired to be heard, or of its own motion without such notice, the High Court or the District Court may atany stage..........." A bare reading ofthis provision would reveal that ifwften Section is invoked by application of one of the parties then the High Court or the District Court may pass any order only after notice to the parties and after hearing such ofthem as desired to be heard. The Supreme Court in the matter of Vivekanand Nidhi v. Asheema Goswami (reported in 2000 (10) SCC 23) in para 10 observed as under: "10. Leamed Senior Counsel for the respondent is right when he contends that if it is an order passed suo motu under Section 24 CPC, there is no question of issuing notice to the other side. However, the moot question remains whether the order of the leamed District Judge was passed suo motu or not. Section 24 CPC itself provides that either on the application of any or the parties and after notice to the parties and after hearing sucti of them that desired to be heard, or of its own motion such notice, fhe High Court or the District Court may at any stage pass appropriate orders under Section 24 CPC, if the conditions provided therein are satisfied. Now on the facts ofthe present case, it is difficult to appreciate how the order of the leamed District Judge can be considered to be a suo motu order when he was moved by an application by the respondent and on fhat application the leamed District Judge thought it fit to invoke his jurisdiction and pass an order under Section 24 CPC. Therefore, invoking ofpowers under Section 24 CPC was not suo motu, but only on the basis of the abovesaid application. Once that conclusion is reached the statutory provisions of Section 24 start operating and w&atever may be the ultimate nature offhe order,the notice had to go to the other side* This, unfortunately, was not done in the present case. Therefore, only on this short ground, the impugned order ofDista-ict Judge dated 14.12.1995, as well as the order of High Court confirming the same are set aside. As a consequence thereof, the transferred suit which is now, we are told, pending before the 10 Court ofDistrict Judge, Alipore, has to be kept pending awaiting further orders as indicated hereinbelow. Therefore, the application •~\ As Sahu ofthe respondents under Section 24 ofthe Code of Civil Procedure is restored to the file ofthe learned District Judge, Alipore. It will be for the District Judge, Alipore, after issuing notice to the appellants who are the contesting parties in the application under Section 24 CPC and after hearing both the parties, to pass appropriate orders thereon." 10. The trial court, upon the finding that the service of notice was not effected upon the plaintiffrespondent by serving it personally upon his residential address nor tried to be served upon such address rior the service contained residential address and therefore, the service was not effected upon the plaintiff/respondent in terms of Order 5 Rule 15 of CPC and set aside the exparte order, which is neither illegal nor perverse. Moreover, no prejudice is going to be caused to the petitioner, as the application filed by flie petitioner is alive and the same shall be decided by the Disb-ict Judge, Rajnandgaon, in accordance with law, after hearing both the parties. 11. It is well settled principle of law that this Court, inexercise ofits supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. 12. In view ofthe matter, in my opinion, it cannot be said that the order • passed by the trial court is i.llegal or perverse, leading to manifest injustice to the petitioner. • 13. Accordingly, the petition deserves to be and is dismissed. No order asto costs. ^^ '^!^& [tTrv^^^^