CRP 172/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) The judgment and order dated 15.02.2011 passed by the learned Civil Judge No. 2, Kamrup, Guwahati in Misc. Appeal No.05/2010, whereby, the order dated 22.01.201 0, passed by the learned Munsiff No.1, Kamrup, Guwahati in Misc. (J) Case No.416 /2006 has been reversed, constitutes the subject matter of challenge in the inst ant proceeding under section 115 of the Code of Civil Procedure (for short herea fter referred to as the Code) read with section 151 thereof. 02. I have heard Mr. SP Roy, learned counsel for the petitioner and Mr. S Medhi, learned counsel for the opposite party, who has entered appearance through a Caveat. The Caveat stands discharged. 03. The backdrop of facts in bare essentials would be necessary. The petitioner instituted T.S No. 73/1998 in the Court of the learned Munsiff No. 1 , Kamrup, Guwahati praying for decree for declaration of his right, title and in terest in and recovery of the suit property described in the schedule to the pla int against Smti. Bindu Devi and her sons, Shri Sambhu Kumar and Shri Kamal Kuma r. The defendants, according to the petitioner, did not contest the suit even on receipt of summons and, thus, the same was decreed ex-parte by the judgment and order dated 08.01.1999. The petitioner has asserted that the summons had been i ssued to the defendants by registered post as well as through the process server at their correct address. Whereas, neither the A/D cards nor the registered not ice along therewith returned, the process server having served the summons in a substituted manner, he was examined by the learned trial Court on 23.11.1998 and thereafter fixed the suit for ex-parte hearing. Subsequent to the decree, the p etitioner instituted Title Execution Case No. 7/1999. 04. Meanwhile, on 06.10.1999, the present opposite party filed an ap plication under Order IX Rule 13 of the Code for setting aside the ex-parte decr ee. The other defendants, however, did not join her in the said application. In Misc. (J) Case No. 114/1999 that was registered on such an application, the peti tioner filed his written objection resisting the prayer. The opposite party offe red her son Shri Sambhu Kumar and Sri Chakreswar Chakraborty her Advocate’s Cler k as witnesses in support of the averments made in the application. The petition er’s son, Sri Kamal Kishor Soni testified on his behalf. 05. The learned trial Court, by its order dated 22.01.2010 having di smissed the miscellaneous case, the opposite party preferred an appeal against t he same being Misc. Appeal No.05/2010 as stated above. The learned Lower Appella te Court interfered with the decision of the learned trial Court. Consequentiall y, the ex-parte judgment and order passed in TS No.73/1998 was set aside and the learned trial Court was directed to allow the appellant (opposite party herein) and other defendants to contest the suit. 06. Mr. Roy has insistently argued that the application filed under Order IX Rule 13 of the Code being vague in material facts and particulars and b ereft, inter alia, of the date and source of the information about the ex-parte decree besides barred by limitation, the learned Lower Appellate Court was paten tly in error in allowing the same. Apart from the fact that all the defendants h ad not joined the opposite party in the application, the omission to disclose th e date and source of knowledge of the ex-parte decree is fatal, it (application) having been filed almost after an interval of nine months with no explanation t herefor, he urged. Mr. Roy has contended that as the summons in the suit had bee n issued to the defendants by registered post with A/D at their correct address and the learned trial Court had accepted the process prescribed by law with rega rd to the substituted service before proceeding with the suit ex-parte, the lear ned Lower Appellate Court ought not to have overturned the findings recorded by the learned trial Court in absence of any material justifying the same. Mr. Roy to reinforce this plea has taken this Court through the series of orders passed by the learned trial Court with regard to the examination of the process server before recording its satisfaction pertaining to service of summons on the defen dants. According to the learned counsel, the approach of the learned Lower Appel late Court has not only been opposed to the weight of the materials on record, i ts observations with regard to the mala fide and mischief attributed to the peti tioner, are wholly unwarranted and baseless. He placed reliance on the decision of the Apex Court rendered in Lanka Venkateswarlu (D) by L.Rs. Vs. State of AP & Ors., 2011 AIR SCW 1450. 07. In response, Mr. Medhi has argued that not only the application, under Order IX Rule 13 for setting aside the ex-parte decree filed by the oppos ite party, was self-sufficient with the essential facts and particulars, the sam e having been adequately supplemented by the evidence adduced on her behalf, the learned Lower Appellate Court was perfectly justified in passing the impugned o rder. The witnesses examined on behalf of the opposite party have, in categorica l terms, disclosed the date and source of her knowledge of the ex-parte decree a nd thus the plea to the contrary is wholly frivolous, he insisted. Mr. Medhi dis missed the petitioner’s cavil on the ground of non-association of the other defe ndants and contended that the omission of service of summons in the suit having been established, effacement of the ex-parte decree as ordered by the learned Lo wer Appellate Court is valid and unassailable. 08. The materials on record and the arguments advanced have received the due consideration of this Court. The institution of the suit against the op posite party and the other heirs and legal representatives, Ram Charitra Kumhar, the ex-parte decree dated 08.01.1999 and the application under Order IX Rule 13 of the Code only by her (opposite party) are matters of records. Whereas, the o pposite party in her aforementioned application asserted that the defendants had never received the notice in the TS No.73/1998 and that she having come to know about the ex-parte decree had hurriedly filed the application, the petitioner i nsisted to the contrary. In his written objection filed against the said applica tion, he averred on oath that after the institution of the suit, he took steps f or service of summons on all the defendants and as they on being offered the sum mons, had refused to accept the same, the Zarikarak effected service by hanging the same on the wall of the defendants. He elaborated that on receipt of such re port of the Zarikarak, the learned trial Court examined him as a witness on 23.1 1.1998, and being satisfied about the validity of such service decide to proceed with the suit ex-parte. He questioned the maintainability of the application by citing the bar of limitation as well. The series of orders passed by the learne d trial Court in the suit ranging from 03.04.1998 to 23.11.1998 evince the afore mentioned exercise undertaken by the learned trial Court. These orders testify t hat not only the summons had been issued to all the defendants by registered pos t as well as through Nazir, but also that on receipt of the process server’s rep ort to the effect that summons had been hung on the wall of the defendants, the learned trial Court examined him on oath on 23.11.1998. The order of that date r eveals that the process server in course of his statement deposed that the summo ns along with the copies of the plaint when tendered to the defendants, they ref used to accept the same, whereafter, he caused the service thereof by hanging th e same on their wall. The learned trial Court accepted the service, and noticing that the defendants inspite thereof had not entered appearance, ordered that th e suit would proceed ex-parte and fixed 10.12.1998 for such hearing. In passing such order, the learned trial Court also took note of the postal receipt corresp onding to the summons dispatched to the defendants by registered post. The suit was, eventually, decreed on 08.01.1999 after examining the petitioner-plaintiff in support of the averments made in the plaint. 09. The application under Order IX Rule 13 of the Code, as has been contended on behalf of the petitioner, is visibly vague and does not disclose, a mongst others, the date of knowledge of the opposite party about the ex-parte de cree as well as the source of information to that effect. She too has chosen not to step into the witness box to testify in endorsement of the averments made in the application. Her son, Shri Sambhu Kumar and her Advocate’s Clerk Sri Chakre swar Chakraborty, however, stated in their affidavit evidence that the date of k nowledge of the ex-parte decree to be 05.10.1999, whereafter, the application wa s filed on the next date. The Advocates Clerk stated that on having come to lear n of the ex-parte decree as well as the Title Execution Case No.7/1999, he immed iately informed the opposite party about the same. This testimony is in improvem ent of the averments made in the application under Order IX Rule 13 of the Code. No explanation as well is forthcoming for whatever worth as to why the other de fendants had not joined the opposite party in her endeavour to get the ex-parte decree set aside. Be that as it may, in absence of pleaded facts with regard to the date and sourc e of knowledge/information about the ex-parte decree in the application under Or der IX Rule 13, the evidence to that effect as furnished by the witnesses of the opposite party, in the opinion of this court, ought not to be taken note of whe n judged on the fundamental principle of variance between the pleadings and proo f. The learned Lower Appellate Court noticeably has also subscribed to this view in concluding that the plea taken in the application under Order IX Rule 13 cou ld not be said to have been proved by the evidence available on record, which tr avel beyond the pleadings. It, however, was of the view that the address of the defendants as provided in the plaint lacked in specifics and underlined the nece ssity of recording reasons for the Court’s satisfaction about service of notice as propounded by this Court in Biswanath Bogar Vs. Gyarsllal Agarwalla, 2004 (Su pp) GLT 234. It, thus, interfered with the order of the learned trial Court conc luding that the petitioner had, with ultimate design, furnished a vague and inco mplete address, so that the summons in the suit could not be served on the defen dants. 10. The opposite party at no point of time had raised any objection with regard to the correctness of the address of the defendants as mentioned in the plaint. No vagueness therein has also been imputed at any point of time. On the other hand, her address mentioned in her application Order IX Rule 13 of the CPC is the same as in the suit. In this view of the matter as well as in the fa ce of the modes of service of summons adopted in the suit including the verifica tion of service thereof made by the learned trial Court by examining the process server on oath, the view of the learned Lower Appellate Court lacks in persuasi on. The observations recorded by it bearing on mala fide shenanigans and fraud a gainst the petitioner have thus to be held to be wholly uncalled for. Though, in course of the arguments, the attention of this Court was drawn to the fact that the report of the process server and the evidence recorded by the learned trial court had gone missing during the pendency of the miscellaneous proceedings bef ore the learned trial Court. On a perusal of the orders from 03.04.1998 to 23.11 .1998, at this distant point of time, the same cannot be construed to have a dec isive bearing on the issues raised herein. The learned District Judge, Kamrup, h owever, would cause necessary inquiries to be made in this regard and have a rep ort submitted before this Court within a period of four (4) weeks herefrom. 11. On a cumulative consideration of the factors narrated hereinabov e, I find sufficient merit in the challenge laid against the judgment and order impugned. The petition is thus allowed. The judgment and order dated 15.02.2011, passed in Misc. Appeal No.05/2010 is set aside. No costs.