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TRILOK SINGH versus A.D.J.

High Court of Judicature at Allahabad

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Trilok Singh v. A.D.J. - WRIT - C No. 10185 of 1989 [2006] RD-AH 8103 (20 April 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.31

CIVIL MISC. WRIT PETIITON NO.10185 OF 1989

Trilik Singh and others.                                       ......Petitioners

Versus

Vith Additional District Judge, Azamgarh and

Others.                                                                 ...Respondents

----------  

Hon'ble Bharati Sapru, J.

Service to the respondent No.2 and other respondents is sufficient. I am proceeding to hear the matter.  

The petitioner has filed the present writ petition against the judgment and order dated 29.5.1989 passed by the 6th Additional District Judge, Azamgarh, the Revisional Authority, in Civil Revision No.497 of 1988.

The facts of the case are that the petitioner alleged to have purchased land in dispute through a registered sale deed dated 14.12.84 executed by one Smt. Gungia.  The petitioner, then applied for mutation in the Court of the Tahsildar, Phulpur, District Azamgarh for the mutation of their name for the land purchased through the aforesaid sale deed.  The respondent No.2 Tej Bahadur filed objections in the mutation proceedings itself and, thereafter, the respondent Tej Bahadur filed suit No.908 of 1986 in the Court of the Munsif Azamgarh for cancellation of the sale deed.  It is the petitioner's case that the petitioners who were defendants in the suit No.908 of 1986 did not receive any summons and did not have any knowledge of filing of the suit.  The suit was decreed exparte on 20.5.1987.  It is the petitioners case that the knowledge of the exparte decree that the exparte judgement was filed by the plaintiff Tej Bahadur in the mutation proceedings was received on 19.3.88 only.  

The petitioners states that having gained knowledge for the first time on 19.3.88, the petitioner moved an application under Order 9 Rule 13 for the setting aside of the exparte decree and prayed that the matter be heard on merits.  

The application under Order IX Rule 13, which is on record to this writ petition contains allegation of the petitioner that no summons were ever received by him.  The petitioner has also alleged in his application under Order IX Rule 13 that the plaintiff cleverly manipulated  the order of substitution of service and on an order substituted service passed in the case and notice of the suit was published in a daily newspaper of Azamgarh by the name of ''DAINIK RANPUJA' which did not have a wide circulation.  The petitioner has stated in this application that this substituted service was effected and considered complete on account of the fraudulent and wrong practices indulged by the plaintiff.  

The Trial Court allowed the application of the petitioner defendant on 17.11.88 by returning a finding that summons had not been properly served on the petitioner and he did not gain knowledge prior to 19.3.88.  The Trial Court also recorded that local newspaper did not have a wide circulation.

Against the order passed by the Trial Court on 17.11.88, the plaintiff respondents filed a revision which reversed the finding of the Trial Court and came to the conclusion that the petitioner had knowledge of the pendency of the suit and that the summons have properly been served on the petitioner and the petitioner was deliberately avoiding to participate in the suit proceedings.  As such, the present petition has been filed against the order passed in revision of 29.9.89.

Learned counsel for the petitioner has argued that it was not open to the Revisional Court to upset the findings arrived at by the Trial Court.  He has argued that the Trial Court after examining the entire material and evidence on record came to the conclusion that service of summons was not complete and that is why an order for substituted service was passed.  He has argued that the Trial Court has correctly come to the conclusion that the local newspaper ''DAINIK RANPUJA' did not have wide circulation and, therefore, it can not be said that summons effective to such newspaper which did not have wide circulation could be accepted as proper substituted service of summons.  

In support of his contentions, learned counsel for the petitioner has cited a decision of the Hon'ble Supreme Court in the case of Devendar Pal Sehgal and another Vs. M/s. Partap Steel Rolling Mills Pvt. Ltd. and others 2002(46)ALR 289.   From this case, the petitioner has sought to take the benefit of dictum of the Hon'ble Supreme Court that where the Trial Court has applied its mind to the facts of the case, it will not be open to the revisional court to set aside the findings of the Trial Court.  

Learned counsel for the petitioner has also relied on another decision of the Hon'ble Supreme Court in the case of C.K. Lokesh Versus P.E. Panduranga Naidu as reported in 1997(1) CRC 255.  Learned counsel for the petitioner has placed reliance on this case to show that he had filed his application with due care and within time as he gained knowledge of the exparte decree on 19.3.88 and within a period of three days he moved his restoration application.  The date of knowledge as argued is the factor in moving the said application and, as such, have moved his application within time.  It had been rightly allowed by the Trial Court.  

In reply to the argument made by learned counsel for the petitioner, learned counsel for the respondent Shri Durgesh Singh has very strenuously argued that the order of the Revisional Court contains no error.  He has argued that the application made by the petitioner for restoration under Order IX Rule 13 was made with allegation of fraud against the plaintiffs. He has argued that in a case where fraud is applied, it is not sufficient that it is pleaded alone, but rather it has to be proved and substantiated by the person who alleges the fraud.  He has argued that the fraud alleged in the present case was that the plaintiffs had indulged in wrong doing by obtaining an order of substituted service and, therefore, the fraud as urged by the petitioner applicant should have been established and proved.  

Learned counsel for the respondent has relied on a decision of the Hon'ble Supreme Court in the case of A.C. Ananthaswamy and others Vs. Boraiah(Dead) by Lrs. as reported in 2004(8) S.C.C.588. Learned counsel for the petitioner has in particular relied on paragraph-5 and 6 of the aforesaid judgment and has argued that :-

"fraud is to be pleaded and proved.  To prove fraud, it must be proved that the representation made was false to the knowledge of the party making the representation or that the party could have no reasonable belief that it was true.  The level of proof require in such cases is extremely high.  An ambiguous statement cannot per se make the representor guilty of fraud.  To prove a case of fraud, its must be proved that the representation  made was false to the knowledge of the party making such representation."  

Learned counsel for the respondent has argued that both allegations were made against the plaintiff for effecting substituted service through fraud, the same was not established and proved against the plaintiff and, therefore, he argues that the summons were properly served on the petitioner defendant and no order could have been passed to restore the case or to set aside the exparte decree.

I have heard learned counsel for the petitioner as well as for the respondents.  The suit itself was filed in the year 1986 and the matter has remained in the Court for the last 20 years.  The present petitioner who obtained the said order in this matter has not averred anywhere in the petition that he is in possession of the property in dispute.  Both the parties contained that they are in possession of the property in dispute.  Whereas, the Trial Court's order records that the summons are not proper.  The revisional court has reverse findings of the Trial Court and had deemed the service on the petitioner defendant to be complete.

Having heard learned counsel for the parties, I am of the opinion that the submissions as made by learned counsel for the respondent has substance and is liable to be accepted by this Court.  Learned counsel for the respondent has also argued that it would be proper that the petitioner moved a fresh application under Order IX Rule 13, which may be considered afresh by the Court below taking into account of the facts and circumstances of the case including the allegations of fraud.  

In view of the passage of time, which is 20 years, I think it would be proper and in the interest of justice that this matter is remanded back to the Trial Court, which will reconsider the application made by the petitioner under Order IX Rule 13 and examine the matter in all its aspects.  It is also expected that it will decide the said application expeditiously, preferably, within a period of one year.  The parties will maintain status quo during this period.  Parties to the suit will not be allowed frivolous or unreasonable adjournments during this period.  

The writ petition is disposed of.  But there will be no order as to costs.  

Dated : 20.4.06

L.F.


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