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Manmatha Nath Maity Vs. Sm. Provabati Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 867 of 1972
Judge
Reported inAIR1983Cal198,87CWN190
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantManmatha Nath Maity
RespondentSm. Provabati Roy and ors.
Appellant AdvocateSasthi Charan Roy (not present), Adv.
Respondent AdvocateS.M. Mukherjee, Adv. for Opposite Parties Nos. 1 to 3
DispositionRevision application succeeds
Cases ReferredNirmal Chandra Roy v. Khandu Chose
Excerpt:
- .....served upon provabati and she duly entered appearance in the suit and filed written statement. the learned judge of the court of appeal below, however, allowed the appeal and set aside the ex parte decree on the ground that summons had not been served upon the minors and there was no appearance of the minors in the suit. the petitioner has challenged the said decision of the learned additional district judge in the present rule.4. the defendant against whom a decree has been passed ex parte may apply under order 9, rule 13 of the code for setting aside the ex parte decree on the ground that summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. if the court is satisfied on any of the grounds, the decree will be.....
Judgment:

S.N. Sanyal, J.

1. This revisional application at the instance of the petitioner is directed against an order dated December 23. 1971 passed by the learned Additional District Judge, 5th Court, Alipore, in Misc. Appeal No. 592/70 setting aside the ex parte decree in Title Suit No. 1064 of the Court of the leaned Subordinate Judge 7th Court, Alipore, on reversal of the order dated November 18, 1970 passed by the learned Subordinate Judge, 7th Court, Alipore in Misc. Case No. 56 of 1969.

2. The facts preceding the present Rule may be summarised as follows :

Title Suit No. 10/64 was instituted in the 7th Court of the learned Subordinate Judge, Alipore, for eviction of the opposite parties and for injunction and mesne profits. The suit was dismissed on contest on March 30, 1968. The said decree was set aside in Title Appeal No. 924/68 on December 24, 1968. The case was sent back on remand for decision framing appropriate issues. The suit was thereafter decreed ex parte on November 19, 1969. Defendant No. 4 Provabati (for self and on behalf of her minor sons Bhutnath and Mantu (defendants 5 and 6) filed an application under Order 9, Rule 13 of the Code of Civil Procedure (Misc. Case No. 56/69) on December 10, 1969 for setting aside the ex parte decree on the ground that summons was not served upon them and the minors had not been properly represented. The petitioners of Misc. Case No, 56/69 are opposite parties Nos. 1-3 in the present Rule. Defendant No. 1 Subala Roy for self and on behalf of her minor sons (defendants Nos. 2 and 3) filed an application under Order 9, Rule 13 of the Code (Misc. Case No. 58/69) on December 18, 1969 for setting aside the ex parte decree on the ground that due to traffic jam she was late in attending Court and could not be present when the suit was called on for hearing. The learned Subordinate Judge dismissed both the applications. As regards Misc. Case No. 58/69, he disbelieved the story of Subala and held that there was no sufficient ground for her default. Regarding Misc. Case No. 56/69, the finding of the learned Subordinate Judge was that summons was served upon Provabati and she had filed written statement after her appearance. Defendants Nos. 4-6 challenged the said decision of the learned Subordinate Judge in Misc. Appeal No. 592/70. Defendants Nos. 1-3 did not prefer any appeal.

3. The learned Additional District Judge agreed with the learned Subordinate Judge and found that summons was duly and properly served upon Provabati and she duly entered appearance in the suit and filed written statement. The learned Judge of the Court of appeal below, however, allowed the appeal and set aside the ex parte decree on the ground that summons had not been served upon the minors and there was no appearance of the minors in the suit. The petitioner has challenged the said decision of the learned Additional District Judge in the present Rule.

4. The defendant against whom a decree has been passed ex parte may apply under Order 9, Rule 13 of the Code for setting aside the ex parte decree on the ground that summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. If the Court is satisfied on any of the grounds, the decree will be set aside if the application is within time. The scope of enquiry in an application under Order 9, Rule 13 of the Code is thus confined to questions regarding the service of summons and whether there was any sufficient cause preventing the appearance of the defendant when the suit was called on for hearing. In the instant case the ex parte decree was passed on November 19, 1969. The application under Order 9, Rule 13 of the Code was filed by the opposite party No. 1 Provabati Roy for self and as natural guardian of her minor sons, opposite parties Nos. 2 and 3 on December 10, 1969. The application was within time. The ground urged by Provabati was that no summons was served upon them and she also raised the contention that there was no proper representation of the minors. In an application under Order 9, Rule 13 of the Code the question whether the minors were properly represented or not, is not germane. There was no necessity for consideration of the said objection while dealing with an application under Order 9, Rule 13 of the Code. The learned Judge in the Court of appeal below has agreed with the learned Subordinate Judge that summons was not only duly and properly served upon Provabati but she also entered appearance in the suit and filed written statement. The learned Judge of the Court of appeal below has further found that Provabati had failed to make out any sufficient cause for her non-appearance when the suit was called on for hearing. The learned Judge of the Court of appeal below, however, came to the conclusion that there was no service of summons upon the minors and there was also no proper representation. It appears from the record that both the Courts below have concurrently held that summons was served on opposite party No. 1 Provabati Roy. The said summons was not only issued to Provabati for self but also as guardian of her minor sons. A notice under Order 32, Rule 3, C. P. Code was also issued to Provabati. It appears from the return of the said notice that Provabati, guardian of the minors, was found present by the process server and on being apprised of the notice, she asked one of her close relations (son of her husband's sister) to accept the notice after giving receipt and the notice was signed by Nirode Kumar Das. The said Nirode Kumar Das also received the summons on behalf of Provabati and her minor sons. The learned Advocate for the opposite parties Nos. 1-3 has referred to the provisions of Order 3, Rule 2 of the Code and has contended that Nirode could not be considered to be a recognised agent within the meaning of Order 3, Rule 2 of the Code. He has further contended that in such circumstances the service of summons upon Nirode cannot be considered to be service in accordance with law. These questions, however, would not arise in the present ease as it is not a case of service of summons upon the recognised agent of a party in his absence. The record would show and the finding of the Courts below also is that there was service upon Provabati. The summons was tendered to Provabati and there was merely the signature of her close relation on her behalf. The contention of the learned Advocate for the opposite parties Nos. 1-3 cannot thus be accepted.

5. The learned Advocate for the opposite parties has referred to Order 32, Rule 3 of the Code and has argued that there was no proper representation of the minors as the mandatory provisions of Order 32, Rule 3 were not followed. In support of his contention he has referred to the case of Nirmal Chandra Roy v. Khandu Chose : AIR1965Cal562 . As it has already been observed, in the instant case we are concerned with an application under Order 9, Rule 13 of the Code and as such, the queslion whether the minors were properly represented or not, is not relevant. The learned Judge of the Court of appeal below acted with material irregularity when he travelled beyond the scope of an application under Order 9, Rule 13 of the Code and held that there was defect in the representation of the minors. This question may be relevant in an appropriate proceeding but not in the present application. The petitioner has been seriously prejudiced because of irregular exercise of jurisdiction by the learned Judge in the Court of appeal below. The order complained of cannot thus be sustained.

6. The revisional application, therefore, succeeds and the Rule is made absolute. The impugned order of the learned Additional District Judge is set aside and the order of the learned subordinate Judge is restored.

7. No order is made as to costs in this Rule.

8. Let the records be sent down to the Court below forthwith.

Anil K. Sen, J.

9. I agree.


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