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Suresh Chandra Sarkar Vs. Gosaidas Pal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1423 of 1975
Judge
Reported inAIR1976Cal87
ActsCode of Civil Procedure (CPC) , 1908 - Order 5, Rule 2 - Order 9, Rule 13
AppellantSuresh Chandra Sarkar
RespondentGosaidas Pal
Appellant AdvocateSadhan Gupta and ;Haripada Saha, Advs.
Respondent AdvocateA.K. Ghoshal, Adv.
DispositionApplication allowed
Excerpt:
- .....decree.4. mr. gupta on behalf of the petitioner amongst several grounds taken has urged that the postcard sent by the court below addressed to the defendant alleged to have been refused by the defendant was not good service according to law. of course. mr. gupta's client did not admit that he had refused any post card sent by the court. the question, therefore, arises whether the alleged refusal of a postcard sent by the court in the name of the defendant was a good service which would disentitle the defendant to get the decree set aside. mr. ghosal, on the other hand, has submitted that the post card was sufficient service because summons meansintimation about the suit and, therefore, when the post card contains the number of the suit and the particulars about the court and when the.....
Judgment:
ORDER

R. Bhattacharya, J.

1. This revisional application has been filed by the defendant-petitioner Suresh Chandra Sarkar under Section 25 of the Provincial Small Cause Courts Act against the order of the Small Cause Court Judge at Sealdah rejecting his application under Order 9, Rule 13 of the Code of Civil Procedure. The landlord-opposite party opposes the Rules.

2. I have heard Mr. Gupta, the learned counsel for the petitioner and Mr. Ghoshal for the opposite party.

3. The petitioner who was the defendant in the original suit for arrears of rent filed against him suffered an ex parte decree and thereafter he filed a petition under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree and for restoration of the suit for hearing on merit. The defendant's case was that the summons of the suit was not served upon him but getting some information he came to know about the ex parte decree. On hearing upon the application filed by the defendant the learned Judge below did not believe the defendant's case. According to him, a registered post card sent by the court about the filing of the suit was refused by the defendant and he had knowledge about the suit and in spite of such knowledge he did not appear. The learned Judge did not find sufficient cause for disturbing the ex parte decree.

4. Mr. Gupta on behalf of the petitioner amongst several grounds taken has urged that the postcard sent by the court below addressed to the defendant alleged to have been refused by the defendant was not good service according to law. Of course. Mr. Gupta's client did not admit that he had refused any post card sent by the court. The question, therefore, arises whether the alleged refusal of a postcard sent by the court in the name of the defendant was a good service which would disentitle the defendant to get the decree set aside. Mr. Ghosal, on the other hand, has submitted that the post card was sufficient service because summons meansintimation about the suit and, therefore, when the post card contains the number of the suit and the particulars about the court and when the said post card was refined as endorsed by the postman there was a good service. From the record it appears that previous to the issue of the post card there was a finding of the Court that the service return in respect of the summons issued by the Court to be delivered to the defendant was not satisfactory. Thereafter, the court passed orders for issue of registered post card to the defendant for ends of justice. I have noticed the contents of the registered post card. In the registered post card the defendant was asked to appear in person or through his authorised pleader on 13-7-1974 and it was further stated that in case of his non-appearance the matter would be heard ex parte. The name of the Court and the number and year of the suit were given. It was also stated that the suit was for recovery of rents. I am, therefore, to consider whether this postcard was sufficient compliance with the law prescribed in the Civil Procedure Code for service of summons.

5. Order 9, Rule 13 of the Civil P. C., says that in a case in which a decree was passed ex parte against the defendant, he may apply to the court by which the decree was passed for an order to set if aside and if he satisfies the court that the summons was not duly served on him or that he WAS prevented by sufficient cause from appearing when the suit was called on for hearing, the Court may set aside the ex parte decree. In the instant case we are concerned to see whether the defendant could satisfy the Court below that the summons was not duly served. Admittedly, the summons sought to be served through the bailiff was not served satisfactorily. The post card which was issued in the name of the defendant does not contain the allegations made in the plaint. There is only the date fixed for appearance and it was stated that it was a case of arrears of rent. Of course, the number of the suit and the Court was there. But, according to the provision of the Civil P. C., there is a form prescribed for the summons. The law also is that along with the summons the copy of the plaint should be served. The copy of the plaint is very much essential. In this case that provision has not been complied with. No summons with the copy of the plaint was, sent by the registered post. There has not been substantial compliance with the law laid down for service of summons upon the defendants. In this connexion my attention has been drawn to an unreported decision of Chittatosh Mookerjee, J. in C R. No. 1649 of 1975 (Cal) delivered recently on 12-8-1975. That was also a case where a registered post card was issued upon the defendant and the learned Judge held :

The learned Judge of the Court below overlooked that the said issue of a registered-postcard was not made under Order 5, Rule 20-A of the Code of Civil Procedure but the same was, at best, an intimation to the defendant about the suit. Such issue of a registered postcard cannot take the place of the service of the summons under post in terms of Rule 20-A.'

In the case before me, the learned Court could have resorted to other modes of service of summons upon the defendant but that has not been done. The registered postcard, as I have already said, did not contain particulars to satisfy the requirement of summons. In these facts and circumstances without going into the question as to whether that post card was refused by the defendant or not or whether there was presumption validly drawn by the court in support of the refusal. I must say that in the instant case when the defendant was not served with summons as prescribed by law, he is entitled to get the ex parte decree passed against him set aside. The learned Judge below without consideration of the mandatory provisions of law was not correct to hold that the decree was not liable to be set aside.

6. In the result, I alloy the application and set aside the order of the learned Court below complained of on terms. I pass no order as to costs in this Rule.

7. The order of the Court below will be set aside and the Rule will be made absolute on the petitioner's depositing in the trial Court the entire decretal dues with costs of the suit in question on or before 1st of December, 1975. If the petitioner fails to comply with the order regarding the payment within the time stipulated, the Rule shall stand discharged.

8. The records of the lower Court shall be sent down as early as possible so that the learned Judge may dispose of the matter as quickly as possible.

9. After the disposal of the suit in question the learned Judge will pass necessary orders for the amount to be deposited by the petitioner, if any.


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