Sheikh Intaz Ali and others Vs. Solaiman Tarafder and others

Appellate Division Cases

(Civil)

PARTIES

Sheikh Intaz Ali and others…………………. Petitioners

-Vs-

Solaiman Tarafder and others………………………. Respondents

JUSTICES

Md. Ruhul Amin J

Md.Tafazzul Islam J

Judgment Dated: 24th April 2006

An application filed under order 9, Rule 13 of the Code of Civil Procedure on the finding that the summons of the suit was not served on the defendants and as such the defendants could not appear before the Court when the suit was taken up for hearing and thus the ex-parte decree was passed……………….. (2)

That the summons by registered post was not served on the defendants and that the summons shown to have been served on the defendants was not proper service on all the defendants and that plaintiffs obtained the ex-parte decree on the basis of collusive service of summons upon the defendants…………………….. (2)

That there was no proper service of summons upon the defendants held that the findings and the decisions of the trial Court are based upon proper consideration of the evidence on record and there is no mis-reading of the evidence on record by the trial Court while arriving at the finding that ex-parte decree was obtained by the plaintiffs upon suppression of summons and that on the basis of collusive return of the service of the summons………………………………. (3)

Md. Nurul Islam Chowdhury, Advocateon-recoxd ………………For the Petitioners.

Respondents …………………….Not represented

Civil Petition for Leave to Appeal No. 1231 of 2004

(From the Judgment and Order dated May 16, 2004 passed by the High Court Division

in a Civil Revision No. 410 of 1998)

JUDGMENT

Md. Ruhul Amin J : This petition for leave to appeal has been filed against the judgment dated May 16, 2004 of a Single Bench of the High Court Division in Civil Revision No. 410 of 1998 discharging the Rule obtained against the order dated October 8, 1997 (Order No. 173 dated 8.10.1997) in Miscellaneous Case No. 17 of 1993 allowing the same and thereby restoring the Title Suit No. 40 of 1985 to its original file and number upon setting aside the ex-parte decree passed therein.

2. The trial Court allowed the Miscellaneous case upon an application filed under order 9, Rule 13 of the Code of Civil Procedure on the finding that the summons of the suit was not served on the defendants and as such the defendants could not appear before the Court when the suit was taken up for hearing and thus the ex-parte decree was passed. As against the aforesaid order of the Court of Senior Assistant Judge, Rampal, Bagerhat the plaintiffs moved the High Court Division and obtained Rule. The High Court Division on detailed discussions of the materials on the record arrived at the finding that process server who figured as O.P.W.3 admitted that he did not find all the defendants in the locality and that he did not make any attempt to serve the summons on the family members of the defendants and that the evidence of the O.P.W.2 who claimed to be the attesting witness is inconsistent with the evidence of O.P.W.3 as regard the manner of service of summons. The High Court Division has observed that the evidence of the witnesses relating to the service of summons on the defendants is conflicting as regard the place of service of summons as well as the manner of service of summons. It may be mentioned the trial Court while arriving at the finding that the summons was not served on the defendants noticed that the attesting witnesses are the relation of the plaintiffs and that process server who figured as O.P.W.3 failed to show any service return on the defendant Nos. 15, 48, 49 and 50. The trial Court while allowing the Miscellaneous Case arrived at the finding that the summons by registered post was not served on the defendants and that the summons shown to have been served on the defendants was not proper service on all the defendants and that plaintiffs obtained the ex-parte decree on the basis of collusive service of summons upon the defendants.

3. The High Court Division discharged the Rule on the finding that the findings and the decisions of the trial Court were based on proper consideration of the evidence and the other materials on record. The High Court Division on consideration of the evidence on record while rejecting the contention of the petitioner that the trial Court upon mis-reading of the evidence of O.P.Ws. 1 and 2 held that there was no proper service of summons upon the defendants held that the findings and the decisions of the trial Court are based upon proper consideration of the evidence on record and there is no mis-reading of the evidence, on record by the trial Court while arriving at the finding that ex-parte decree was obtained by the plaintiffs upon suppression of summons and that on the basis of collusive return of the service of the summons.

4. We have heard the learned Advocateon-record and perused the materials in the petition for leave to appeal. On perusal of the judgment of the High Court Division and the order of the trial Court we are of the view that on interference is called for with the judgment sought to be appeald.

5. Accordingly the petition is dismissed.

Source : V ADC (2008),420

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