Skip to content


Gopal Ch. Kalita Vs. Chiddi Sau - Court Judgment

LegalCrystal Citation
Subject;Tenancy;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 48 of 1980
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 5, Rule 19A(2)
AppellantGopal Ch. Kalita
RespondentChiddi Sau
Appellant AdvocateP.N. Goswami, Adv.
Respondent AdvocateB.C. Baruah, D.K. Bhattacharjee, A.K. Das and H.K. Sarma, Advs.
DispositionPetition dismissed
Prior history
S.M. Ali, J.
1. This revision petition is against the order dated 18-2-1980 passed by Shri Jaisingh Chetri, Sadar Munsiff, Gauhati in Misc. Case No. (J) 19 of 1979 setting aside the ex parte decree passed by him on 28-2-1979 in Title Suit No. 26 of 1978. The circumstances leading to this petition are as follows. The petitioner instituted ejectment suit being No. 26 of 1978 against the defendant-respondent for ejectment from the suit house and for recovery of arrear rent together with compe
Excerpt:
- - the wordings in the provisions, the postal article containing the summons is received back by the court etc,'clearly indicate that the postal article which is received back must be containing the summons and that unless the summons be proved to have been contained by the postal article, mere refusal of the postal article will not comply with the provisions of law. the provisions of section 115 read as follows :115. revision -(1) the high court may call for the record of any case which has been decided by court subordinate to such high court and for which no appeal lies thereto and if such subordinate court appears -(a) to have exercised a jurisdiction not vested in it by law or (b) to have failed to exercise jurisdiction so vested or (c) to have acted in the exercise of its..........house and for recovery of arrear rent together with compensation amounting to rs. 56.50 p. in that suit summons was issued to the defendant-respondent. it is alleged that he refused to accept the summons and the process server affixed a copy of the summons on the wall ofthe dwelling house of the respondent. but the court directed the summons to be served by registered post and accordingly the summons was issued to the respondent by registered post with acknowledgment due which was returned to the court with an endorsement by the postal peon to the effect that the addressee refused to accept the envelope. on the direction of the court, the summons was reissued by registered post with acknowledgement due and this time also the respondent refused to accept the cover containing the summons.....
Judgment:

S.M. Ali, J.

1. This revision petition is against the order dated 18-2-1980 passed by Shri Jaisingh Chetri, Sadar Munsiff, Gauhati in Misc. Case No. (J) 19 of 1979 setting aside the ex parte decree passed by him on 28-2-1979 in Title Suit No. 26 of 1978. The circumstances leading to this petition are as follows. The petitioner instituted ejectment suit being No. 26 of 1978 against the defendant-respondent for ejectment from the suit house and for recovery of arrear rent together with compensation amounting to Rs. 56.50 p. In that suit summons was issued to the defendant-respondent. It is alleged that he refused to accept the summons and the Process Server affixed a copy of the summons on the wall of

the dwelling house of the respondent. But the court directed the summons to be served by registered post and accordingly the summons was issued to the respondent by registered post with acknowledgment due which was returned to the court with an endorsement by the postal peon to the effect that the addressee refused to accept the envelope. On the direction of the court, the summons was reissued by registered post with acknowledgement due and this time also the respondent refused to accept the cover containing the summons which was returned by the Postal Department with an endorsement of the postal peon that the defend ant-respondent refused to accept the envelope containing the summons. Thereafter the court took that the summons had been served on the defendant-respondent and by order dated 9-2-1979 the suit was fixed for hearing ex parte on 23-2-1979. On this date, the learned court heard the plaintiff-petitioner and then passed the impugned order of ejectment and arrear rent against the respondent defendant on 28-2-1979. The plaintiff-petitioner thereafter started execution proceeding in title execution case No. 6 of 1979 and in execution of the decree obtained delivery of khas possession of the house through court by ejecting the respondent on 8-4-1979. The respondent defendant filed an application on 9-4-1979 to the court under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree on the allegation that he had not been served with any summons or notice of the case or of the execution proceeding. On this petition Misc. Case No. (J) 19 of 1979 was started. In this case the plaintiff-petitioner submitted a written objection denying the allegations of the defend ant-respondent and taking the plea of bar of limitation. Both parties adduced evidence, oral and documentary. The allegation of the defendant-respondent is that during the relevant time he was away from Assam and was living in Bihar at his permanent residence in connection with the illness of his father and that no summons was issued to him either by post or otherwise. The learned Munsiff found that the summons was not duly served on the defendant-respondent in the suit and so he set aside the ex parte decree and fixed 26-2-1980 for steps in the main suit. Against this order, the present revision petition has been filed by the plaintiff.

2. In this revision petition the points to be determined are whether the summons was duly served on the defendant-

respondent in the suit in which the ex parte decree was passed and whether the Misc. Case No. (J) 19/79 under Order 9, Rule 13, C. P. C. was time barred.

3. As regards the point of limitation under Article 123 of the Limitation Act, the limitation period is 30 days with effect from the date of decree. The matter depends on proper service of the summons, Otherwise, the limitation period runs from the date of knowledge of the party concerned about the ex parte decree. So, this question also depends on the finding regarding service of the summons in the main suit.

4. It was argued on behalf of the petitioner that in suit No. 26 of 1978, service of summons through post to the defendant-respondent was accepted by the court as valid. It was further argued that in the Misc. Case, the learned Munsiff did not discuss the evidence on record. But as is found in his order dated 18-2-1980, learned Munsiff considered the evidence although there has been no detailed discussion of the evidence. I find no reason to think that the impugned order should be set aside on this ground. The main point argued in this case on both sides is regarding the provisions of sub-rule (2) of Rule 19A of Order 5, C. P. C, These provisions read as follows:--

'(2) When an acknowledgment purporting to be signed by the defendant or his agent is received by the court or the postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the court issuing the summons shall declare that the summons had been duly served on the defendant.'

On behalf of the petitioner it was argued that these provisions of law were complied with in the suit in favour of the plaintiff-petitioner. PW3, the postal peon in his evidence in the Miscellaneous Case supported this by deposing that when he tendered the envelope, it was refused by the addressee. On this point learned court below also found that as per last order of the court dated 6-12-1978, the registered letter No, 1706 dated 20-12-1978 was issued. But it is found that there is no proof that this letter was refused to be accepted by the defendant-respondent himself. The learned Munsiff also found that it has not been proved that the summons issued earlier and the

one issued on 20-12-1978 through the aforesaid registered envelope were the same. The registered letter dated 20-12-1978 was before the court but it being remained closed, the identity and contents of the summons could not be ascertained. On behalf of the petitioner it was argued that the learned Munsiff ought to have opened the envelope to make such ascertainment The provisions of Sub-rule (2) of Rule 19A of Order 5 disclose that it must be proved that the postal article contained the summons as ordered by the court. The wordings in the provisions, 'the postal article containing the summons is received back by the court etc,' clearly indicate that the postal article which is received back must be containing the summons and that unless the summons be proved to have been contained by the postal article, mere refusal of the postal article will not comply with the provisions of law. So, the finding of the learned Munsiff has not been wrong that the plaintiff-petitioner did not take steps to prove that the registered envelope contained the summons of court. The closed envelope remained closed during the trial of the case. The question arises as to who was to take initiative in this regard. Certainly, it lay on the plaintiff opposite party to pray to the court for opening of the envelope and adduce evidence to the effect that the summons related to the original suit itself. These things were not done by the plaintiff-petitioner. In that' view, the aforesaid provisions of law cannot be taken to have been complied with.

5. On behalf of the respondent, it was also argued that the present petition under Section 115, C. P. C. is not maintainable. The provisions of Section 115 read as follows :--

'115. Revision -- (1) The High Court may call for the record of any case which has been decided by court subordinate to such High Court and for which no appeal lies thereto and if such subordinate court appears --

(a) to have exercised a jurisdiction not vested in it by law or

(b) to have failed to exercise jurisdiction so vested or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may maka such order in the case as it thinks fit.'

There is no doubt that the court below had jurisdiction to decide the matter of the Misc. Case No. (J) 19 of 1979. The

only thing to be seen here is whether the court below acted in the exercise of its jurisdiction illegally or with material irregularity. On behalf of the respondent, AIR 1'972 SC 2379, M. L. Sethi v. R. P. Kapur was referred to wherein it was held that the jurisdiction of the High Court Under Section 115, C. P. C. is a limited one. The Section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved and that Section 115 empowers the High Court to satisfy itself on three matters -- (a) that the order of the subordinate court is within its jurisdiction, (b) that the case is one in which the court ought to exercise jurisdiction, and (c) that in exercising jurisdiction the court has not acted illegally, i.e. in breach of some provisions of law or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. Here, in the present case, there has been no breach of any provision of law, nor has there been any error of procedure in the trial which was material in that it might have affected the ultimate decision. On behalf of the respondent the ratio or AIR 1971 SC 2324 was also brought to my notice- In that case it was held that while exercising the jurisdiction Under Section 115 it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the court to try the dispute itself and that the words 'illegal' and 'with material irregularity' as used in Clause (c) of Sub-section (1) of Section 115 do not cover either errors of fact or of law and also that the errors contemplated in this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ulitimate decision and not errors either of fact or of law after the prescribed formalities have been complied with. That being the position of law, I doubt whether this petition is maintainable Under Section 115, C. P. C. The learned court below has arrived at the impugned decision in exercise of its own jurisdiction and there has been no breach of any provision of law or any material defect of procedure affecting the ultimate decision.

6. In my view the above discussion is sufficient to dispose of this petition and in the light of the discussion made above, the petition is dismissed, but with no

cost. The impugned order of the learned court below shall stand good.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //