P.N. Mookerjee, J.
1. This Rule arises out of an application for setting aside, what in truth and substance, was an ex parte decree, passed against the applicant who is the contesting opposite party before us. The application was made under the usual provision of Order IX, Rule 13 of C. P. C. The applicant was defendant No. 3 in the suit for partition, in which the aforesaid ex parte decree was passed. The applicant's case was that no summons of the suit had been served upon him and that he came to know of the above ex parte decree within the relevant period, namely, thirty days of the date of presentation of the aforesaid application for timely presentation of the said application for purpose of limitation.
2. The application was contested by the present petitioner who was the contesting defendant No. 1 in the original suit, but he had as much interest in the decree for partition as such defendant as the plaintiff herself and, accordingly, he was certainly entitled to oppose the above applicant's aforesaid application.
3. The case of the present petitioner was that, in the circumstances, stated in his petition of objection, the applicant, who is the contesting opposite party before us, as stated hereinbefore, must be held to have had knowledge of the suit and knowledge of the decree also at all material times and, certainly, long before thirty days of the filing of the aforesaid application under Order IX, Rule 13 of the Code of Civil Procedure.
4. In support of their respective cases, the parties examined themselves and also some witnesses.
5. The learned Subordinate Judge, on an examination of the oral evidence before him, came to the conclusion that, in the circumstances of this case, the application under Order IX, Rule 13 should be allowed on terms as to payment of costs by the applicant as and by way ot condition precedent and the ex parte decree should be set aside and the suit in question should be re-heard after restoration, even though the application under Order IX, Rrule 13 of the Code of Civil Procedure had been filed a long time, viz., roughly, a period of seven years, after passing of the aforesaid ex parte decree.
6. The circumstances are rather unusual, and prima facie against the applicant-opposite party and this has not been overlooked by the learned Subordinate Judge, but the difficulty of the present petitioner is that this is a Rule proceeding under Section 115 of the Code of Civil Procedure and if the learned Subordinate Judge has accepted the evidence of the opposite party, however wrong that acceptance may be, depending, as it does, on the assessment of the oral evidence before the court and being or involving simply a question of believing or disbelieving a particular witness, it is not permissible for this court to interfere under Section 115 of the Code of Civil Procedure. Mr. Dutt who appeared for the petitioner, realised this difficulty, but he attempted to get rid of the same by raising an interesting question, namely, that, in the present case, no summons of the suit, of the non-service whereof complaint is made by the applicant-opposite party, need have been served in law. The submission is made in the particular facts and circumstances of this case which are as follows:
The suit in question, namely, the partition suit, was originally brought in forma pauperis, that is, by filing an application for instituting and continuing the suit as a pauper. That application was registered as Misc. Case No. 19/1947. The application was eventually allowed and the proceeding, in accordance with and as required by law, was registered as T. Section 69/1947. In the original pauper proceeding namely, Misc. Case No. 19/1947, the present contesting opposite party who was defendant No. 3 in the relative partition suit and opposite party No. 3 in the said pauper application, had entered appearance and consented to the plaintiff's being allowed to sue as a pauper, the plaintiff being, as it appears from the evidence, his wife after her remarriage with him, on the death of her previous husband. Mr. Dutt contends that, in these circumstances, when, under Order XXXIII Rule 8, a petition of pauperism, on being granted, is itself to be deemed as the plaint in the suit, it must be taken that the plaint was presented when the pauper application was filed in court and the suit also must be deemed to have been instituted on that date and the defendant's appearance in the pauper application, namely, Misc. Case No. 19/1947, must be deemed to have been his appearance in the suit itself, thus rendering it unnecessary in law to serve any summons of the suit upon him, the notice served upon him in connection with the application for pauperism (Misc. Case No. 19/1947) being, in the circumstances, the substitute-the legal and valid substitute - for the summons of the suit. The point raised is somewhat intriguing and interesting. But, having given the matter our best consideration, we are unable to accept it. It is true that, under Order XXXIII, Rule 8, the pauper application, on being granted, is to be deemed to be the plaint of the pauper suit, which is ultimately registered upon and because of the granting of the said pauper application. It may be true also that, for purposes of limitation, - & may be for certain other purposes too, - the suit must be deemed to have been filed, when the original pauper application was presented in court. The suit, however, actually came into existence, when the pauper application as the plaint in the suit was registered, and, in the facts and circumstances of this particular case, when, roughly speaking, it was given the number T. S. 69/1947.
7. Under Order V, Rule 1, service of summons on the defendant is obligatory in every suit, unless the case comes within the proviso which contemplates the case of a defendant who has entered appearance at the presentation of the plaint and who has admitted the plaintiff's claim. The present case, in our opinion, cannot be brought within the said proviso and, if that be the true position in law, summons of the suit (T. S. 69/1947) had to be served upon all the defendants including the applicant-opposite party who was defendant No. 3 therein. That actually was attempted to be done in this case also, as we find on the record that, after registration of the suit as aforesaid, the plaintiff was directed to put in process fees and copies of the plaint and the court directed service of summons upon the defendants and, it was only after the peon's return had been accepted by the learned Subordinate Judge that there was actually service of summons upon the present contesting opposite party, defendant No. 3 that the suit in question proceeded. What we have said above also accords quite fully with the practice in this matter which prevails in the civil courts, and, in our opinion, that practice is salutary and fully in accordance with law and it should not be interfered with.
8. Mr. Dutt also drew our attention to the decision of the Madras High Court, reported in Sonnamal v. Coimbatore Maha Jana Bank Ltd. : AIR1934Mad690 , where it was held by the learned Judges of the Madras High Court that the Vokalatnama filed in connection with the pauper proceeding or the Misc. Case, may, in law, be the Vokalatnama for the particular party in the suit itself when the same is registered. The question there appears to have arisen, presumably on the office report, whether such Vokalatnama should be accepted as sufficient for purposes of the suit also. It was really a concession or relaxation in law in favour of a particular party and it certainly cannot be used to his prejudice to nullify, for all practical purposes, so far as pauper suits are concerned, the express statutory provision in Order V, Rule 1, which exempts the plaintiff from serving summons upon the defendant only when that defendant had appeared at the presentation of the plaint and has admitted the claim of the plaintiff.
9. Before us Mr. Dutt, of course, argued and argued very strenuously, that in the facts of this case, not only was there appearance of this particular defendant in the suit itself, in the light of the Madras decision, referred to hereinbefore, but there was also admission on his part of the plaintiff's claim but we are unable to accept his said argument. It is to be remembered here that the claim of the plaintiff, which was originally made, was substantially changed by amendment at a later stage and, as, in law, the amendment would relate back to the date of filing of the suit, this amendment, by which the plaintiff's original case or claim was materially changed and which original claim alone may, at the most, be said to have been admitted or accepted by the present contesting opposite party as defendant No. 3 in the above context or circumstances, - would relate back to the date of presentation of the plaint and would form part of the said original plaint from the date of its presentation. In these circumstances it cannot be said that, materially speaking, there was any admission by this defendant of the suit claim of the plaintiff and accordingly, even if the Madras view be extended and applied at it's widest to the present case, leading to the position that the defendant must be taken to have entered appearance in the suit also by the tiling of his Vokalatnama in the pauper application or the Misc. Case, referred to above, the proviso to Order V Rule 1 would not be satisfied and the plaintiff cannot claim exemption from service of summons upon the defendant. We feel, further, that the deeming provisions of Order XXXIII, Rule 8 should not be construed or applied in such a manner as to whittle down the mandatory provision of Order V Rule I and to render it irrelevant and inapplicable to pauper suits for all practical purposes. The interesting point raised by Mr. Dutt, as noted and discussed above, must, therefore, be decided against him and, in that view, no other point would remain which would entitle us, in the circumstances of this case, to interfere with the order of the learned Subordinate Judge under Section 115 of the Code of Civil Procedure.
10. This Rule, accordingly, fails and it is discharged.
11. In the circumstances, there will be no order for costs in this Rule, but the order for costs, as made by the trial Court, in favour of the present petitioner and against the applicant-opposite party as and by way of condition precedent for the setting aside of the decree in question and restoration and rehearing of the suit will be maintained.
12. I agree.