.^^"% ^;'^::^^ "f HIGH COURT OF CHHATTISGARH AT BILASPUR C,R,No.110of2009 Applicant Plaintiff/non- applicant No. 1 Non-apDlicants Applicant/defendant No.A ApDiicanVdefendant No.2 Appiicant/defendant No.3 ApplicanVdefendant Na4 Non-aDoltcant/piaintiff Non-applicanVpiaintiff Salikram, S/o Dularsingh, Caste Sahu, aged about 40 years, occupation, Agricuiturist, R/o Village Mahud, PO Mahud, Tahsil Chowki, District Rajnandgaon (CG). Versus 1. Binjhwar, S/o Dularsingh, Caste Sahu, aged about 65 year, occupation, Agriculturist, R/o Village Kamkapara, PO Kamkapara, Tahsil Dondilohara, District Durg (CG). 2. Birjhuram, S/o Dul^rsingh, Caste Sahu, aged about\ 60 years, occupation Agricylturist; 3. Anjorsingh S/o Birjhuram, Caste Sahu, aged about 25 years, occupation Agricuiturist; 4. Vishramsingh, S/o Birjhuram, caste Sahu, aged about 22 years, occupation Agriculturist; Respondent No. 2 to 4 are R/o Village Turmuda, PO Mugchua, Tahsil Dondilohara, District Durg (CG). 5. Birsibai, wd/o Dularsingh, caste Sahu, aged about 70 years, R/o Village Mahud, PO Mahud, Tahsil Chowki, District Rajnandgaon (CG). 6. Manakbai, D/o Dularsingh W/o Komalsingh sahu, aged about 40 years R/o Village Tuadabri, Post Chowki, Tahsi! Chwki, District Rajnandgaon (CG). ^ Civil Revision under Section 115 of the Code of Civil Procedure (SB: Hon'ble Mr. N.K. Aaarwal, J.) Present : Shri PP Sahu, Advocate for the applicant. ORAL ORDER (Passed on 6th day ofApril, 2010) Heard on admission. 1. Feeling aggrieved and dissatisfied with the order dated 06.11.2009, passed by the Civil Judge, Class II, Dondilohara, in Misc. Civil Case No. 2/09, the instant revision has been preferred by the plaintiff/applicant. 2. The brief facts of the case in nutsheli are that the applicant and plaintiff No. 5 & 6 have instituted a suit against non applicant No.1 to 4 & State, seeking relief of declaration and permanent injunction. 3. In the said suit, as per applicant, summons upon Anjorsingh and Vishramsingh were served through non applicant Birjhuram i.e. their father as they were not present at the time of service of summons. 4. The non applicant No. 1 to 4 were proceeded exparte due to there non appearance and vide judgment and decree dated 28.04.2008 the trial court passed the exparte decree in favour of the plaintiffs. 5. There against, an application was preferred alongw'rth an application under Section 5 of Limitation Act on the ground that defendant No. 3 & 4 had gone to Gujrat from November to July. The defendant No. 2/Birjhuram is a rustic villager, they are living separately, defendant No. 1 is living at village Kamkapar, the ptaintiffs have taken thumb impression of defendant No. 2 over the summons just to show that the summons were served upon all the ^3^'^ i.r" 8. defendants. They did not gave any information about this. The fact of exparte decree was for the first time known to defendants on 18.07.2008, thereafter they have applied for its copy and immediately thereafter they have preferred an application for setting aside the exparte decree. In defence, the plaintiffs reply was that the summons on the defendants was duly served, pendency of the suit was well within their knowledge, the application is time barred and the same deserves to be di^nissed. Both the parties led their evidences. The trial court, considering the evidence adduced by the parties, held that summons were served upon the Birjhuram but he was not aware about the case as he is illiterate old villager. Anjorsingh and Vishramsingh were in Gujrat from November to July and they have no knowledge about the service of summons. Anjorsingh and Vishramsingh are living separately from his father and also they are not in talking terms with Birjhuram i.e. their father, allowed the application and set aside the exparte decree. Hence this revision. Shri PP Sahu, learned counsel appearing for the applicant would contend that under Order 5 Rule 15 of CPC where in any suit the defendants is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf; service may be made on any adult members of the family, and in the instant case, it is not in dispute, summons were served upon the f«n«ii^. 9. 10. 11, adult member i.e. father and therefore the trial court has erred in allowing the application for setting asjde the exparte decree. 1 have heard the counsel appearing for the applicant, perused the order impugned and records of court below. The findings recorded by the trial court is a finding of fact. Unless the findings recorded is perverse or based on no evidence, it is not open to challenge in revision. The findings recorded by the trial court in the instant case that Birjhuram is a old illiterate person and he was not aware about pendency of the su'rt, Anjorsingh and Vishramsingh were also not aware about the pendency of the suit due to their absence from the Village from November to July, Anjorsingh and Vishramsingh were living separately from his father and not in talking terms with him, are essentially findings of fact. So far as, the provision contend in Order 5 Rule 15 of CPC is concerned, in order to served the summons upon the adult member of defendants family, the requirements are: a. The defendants should be absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time b. Service may be made on any adult members of the family, whether male or female, who is residing with him. Here in the instant case, as per the evidence adduced, it is crystal clear that Birjhuram and his two sons are living separately. The service of summons was not sought to be effected on him on his residence but on the residence offather; the process sever has Sahu 12. 13. not recorded a finding that there is no likelihood of his being found at the residence within a reasonable time, and as such, it cannot be said that the service of summons effected upon the father js effective service upon Anjorsingh and Vishramsingh. In view of foregoing, in the considered opinion of this court, the order impugned does not call for any interference in exercise of revisional jurisdiction of this court. The revision being devoid of substance is liable to be and is hereby dismissed. No order asto costs. Sd/- N. K. Agarwal Judge ^^^