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October 24, 2004

Code of Civil Procedure, 1908 (V of 1908)

Trial Court may set aside ex-parte decree only on reasonable grounds

High Court Division
(Civil Revisional Jurisdiction)
Civil Revision No. 147 of 2003
Asia Bewa and others
v
Md Bachchu Fakir & another
Mr. Justice Mohammad Abdur Rashid
and Justice Syed A B Mahmudul Huq
Date of Judgment: April 27, 2004
Result: Rule absolute

Background
Mohammad Abdur Rashid, J: The plaintiffs obtained the Rule upon making a revision application under section 115 (1) of the Code of Civil Procedure against the order No. 128 dated 17.11.2002 passed by Joint District Judge, Court No. 1 at Bogra in Miscellaneous Case No. 73 of 1999, which set aside the decree dated 08.02.99 and restored the suit to its original file and number.

It is stated that on 02.02.92, petitioners No. 8 to 12 and the predecessors of the partition suit No. 31 of 1992 against 44 defendants, out of the defendants, defendant No. 2 to 6 and 9 only contested the suit.

The suit was first decreed in the preliminary form on contest against said defendants and ex-parte against the rest by Judgment and decree dated 08.02.99. After the report of the Advocate Commissioner effecting partition of the Joint property was filed, the preliminary decree was made final on 19.08.99. In execution of the decree in other Execution No. 01 of 2000, the plaintiff got possession of his shares and on 24.10.01 the execution proceeding was finally disposed of on full satisfaction.

Meanwhile, on 20.06.99 defendant No. 40 and 41 jointly made an application under Order IX Rule 13 of the Code of Civil Procedure for restoration of the suit to its original file and number after setting aside the decree mainly on the ground that no summons was served upon them. The application was registered as Miscellaneous Case No. 73 of 1999.

Opposite Party No. 10 of said application opposed the application by filing a written objection.

In support of the case, defendant No. 40, Bachchu Fakir alone was examined on behalf of himself and on behalf of defendant No. 41 while on behalf of the plaintiffs four witnesses were examined including the process server and two witnesses who witnessed the services.

On 08.02.99 by the impugned order, learned Joint District Judge allowed the application with cost of Taka 2000.00 and restored the suit to its original file and number by setting aside both the preliminary decree and final decree.

It appears from the record that the process server returned the process with the report that he went to the house of defendant No. 39, 40, 43 and 44, and found defendant No. 41 present. When he asked him to receive the summons with acknowledgment, he refused, consequently, he served the summons by affixing copy at the door of the house. The return was duly verified by statutory declaration upon the aforesaid return, the Court found that the summons was duly served and proceeded to hear and dispose of the suit.

Opposite party No. 2 of Miscellaneous Case No. 73 of 1999, Md Moksed Ali examined him as PW 1 on behalf of opposite party No. 1 to 10. He deposed that the process served the summons upon defendant No. 40 and 41 in presence of witnesses, namely, Md Abdus Sattar Mandal and Md Abu Bakkar Siddique. Process server, Sheik Sultan Ali as OPW2 testified that on 18.04.92 he served summons upon defendant No. 40 Bachchu Fakir and 41 Dulu Fakir. Reaching the address, he found defendant No. 40 Bachchu Fakir and 41 Dulu Fakir. Reaching the address, he found defendant No. 41 Dulu Fakir and explained the contents of the summons and asked him to receive them. But he refused to receive them. Then, he served the summons by hanging at the main door of their house. At the time, Md Abdus Sattar Mandal, son of defendant No. 7 and Md Abu Bakkar Siddique, son of defendant No. 8 were present there. They signed the return as witnesses. He proved the return as exhibit-'Ka' and identified his signature as exhibit-'Ka'1.

Both Md Abu Bakkar Siddique and Md Abdus Sattar Mandal as open 3 and OPW 4 corroborated OPW2 process server Sheikh Sultan that they took the process server to the house of Bachchu and Dulu. Dulu was present. The peon asked him to receive the summons after reading that over. Dulu refused to receive it. Then, the peon hanged the summons at the door of their house. They also singed the return, which they identified.

Defendant No. 41 did not appear. Defendant No. 40 claimed that they did not receive any summons. They could not however claim that they did not live in the house at the door of which the summons was served by hanging.

Deliberation
After careful scrutiny of the evidence of said OPW 1 to 4, we have no hesitation to say that the summons was rightly found to have been duly served upon said defendant No. 40 and 41. Learned Joint District Judge also could not say that the summons was not served.

Mr Md Khurshid Alam, learned Advocate for opposite party no. 1 and 2 read entire evidence of the witnesses and submitted that the witnesses contradicted with each other; But the inconsistency in the depositions of the witnesses as mentioned by Mr Khurshed Alam could not displace the proof that the summons was duly served by hanging at the door of the house of defendant no. 40 and 41 who are full brothers.

Under Order IX Rule 13 of the Code of Civil Procedure, the trial Court has got discretion to set aside a decree passed ex-parte but such discretion could only be exercised on either of the grounds, namely, (a) summons was not duly served or (b) absentee defendant was prevented by sufficient cause from appearing when the suit was called on for hearing. In the absence of any of such findings, the trial Court has no jurisdiction to set aside an ex-parte decree.

In the case at hand, the learned Joint District Judge allowed the application on the view that it was reasonable to give them opportunity to be reasonable, upon such assumption, exercise of the discretion by the learned Joint District Judge resulted in serious indiscretion, which no doubt occasioned failure of justice in the facts and circumstances of the case.

Result
In the result, the Rule is made absolute without however, any order as to cost. Order of stay granted at the time of issue of the Rule on 18.01.2003 is hereby recalled and vacated impugned order dated 17.10.2002 is hereby set aside.

No one appears for the petitioners.
Mr Md Khurshid Alam Khan, for the opposite party No. 1 and 2