Moriom Bewa Vs. Md. Ahshan Prang, 2018(1) LNJ 340

Case No: Civil Revision No. 4484 of 2015

Judge: Mohammad Ullah, J.

Court: High Court Division,

Advocate: Mr. Md. Khairul Alam, Mr. Md. Shariful Islam, Advocate,

Citation: 2018(1) LNJ 340

Case Year: 2017

Appellant: Moriom Bewa

Respondent: Md. Ahshan Prang and others

Subject: Code of Civil Procedure

Delivery Date: 2018-06-07

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Mohammad Ullah, J.

Judgment on

23.11.2017

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Moriom  Bewa

 ...Petitioner

-Versus-

Md. Ahshan Prang and others

…Opposite-parties

 

Code of Civil Procedure (V of 1908)

Section 115 (4)

Civil Rules and Order

Rule 70

The rule 70 of the CRO requires service of summons in presence of two independent local witnesses. From the report of process server, it could not be ascertained that the attesting witnesses who indentified the house of the defendant are the persons of the locality since there is no address in his report dated 21.11.2007. With regard to the registered post, it appears that postal receipt shows that on 26.11.2007, the defendant received the summons putting his signature. The learned judge compared the signature of the defendant with the signature of postal receipt and the signature appearing in the Okalatnama and the deposition sheet of the defendant are not the same. This being the concurrent finding of the court below, this court sitting on a revisional jurisdiction under section 115 (4) of the Code cannot interfere into such finding of the court below except on an error of law of an important question of law resulting in an erroneous decision passed by the courts below. It further appears from the deposition of the petitioner side that they failed to prove that the summonses were duly served upon the defendant. The process server or the attesting witnesses who indentified the house of the defendant were not brought into the court to prove that the summons was duly served upon the defendant. On a reading of rule 19A of Order V of the Code, it appears that this rule shows that service return duly submitted is to be accepted as evidence of the facts as to the service of summons but the rule does not give a go by to the mandatory provisions of rule 19 of Order V of the Code.                                           . . .(12)

Code of Civil Procedure (V of 1908)

Order V, Rules 12 and 19

It is to be noted here that service of summons on a male Member of the family would not constitute valid service unless the report of the process server contains a statement that there was no likelihood or the defendant who was absent at the time of service being not found at his residence with a reasonable time, the process servers report must set out his action in full that the defendant was not found, without stating what effort was made to find him is not acceptable in law. In the instant case, on a reading of the report of the process server, I do not find that the mode of searching of the defendant was exhausted by the process server at all.  The rule 19 provides for examination of serving officer with an endorsement that the court shall verify from the deposition of serving officer whether the summons were served or not in a mandatory form. The word shall makes it clear as appearing in rule 19 of Order V that it is mandatory upon the Court to examine the serving officer to ascertain as to whether the summons were duly served, or not. There is no doubt summons may be served upon an adult member of the defendant family under the provisions of the rule 15 of Order V of the Code as has been done in the instant case but both the courts below concurrently disbelieved that the summons was duly served upon the defendant. In case of allegation of non-service of summons upon the defendant/opposite party, as the case may be, the onus is upon the plaintiff/petitioner that the summons of the suit or the case was served upon the defendant/opposite party. Moreover, order V, rule 12 of the Code has provided that whenever it is practicable, service of summons shall be made upon the defendant herein opposite party in person unless he has an agent empowered to accept the service, in which case service on such agent shall be sufficient. Therefore this court sitting on a revisional jurisdiction without any important question of law cannot interfere into such reasonable finding of the courts below.           . . . (11 and 13)

Md. Insan Ali Vs. Mir Abdus Salam, 40 DLR (AD) 193 ref.

Mr. Md. Khairul Alam with

Mr. Mustafa Hamid Siddique, Advocates

...For the petitioner.

Mr. Md. Shariful Islam, Advocate

...For the opposite-party No. 1.          

JUDGMENT

Mohammad Ullah, J: On an application under section 115(4)  of the Code of Civil Procedure, 1908 “(the Code)” leave was granted and Rule was issued calling upon the opposite-party No. 1  to show cause as to why the judgment and order dated 11.08.2015 passed by the learned District Judge, Rajshahi  in Civil Revision No. 75 of 2014 rejecting the revisional application and  affirming the judgment and order dated 25.11.2014 passed by the learned Assistant Judge, Durgapur, Rajshahi in Miscellaneous Case No. 16 of 2013 allowing the Miscellaneous Case filed by the defendant under Order IX, Rule 13 of the Code and thereby restoring the Partition Suit No. 102 of 2007 to its file and number should not be set aside and/or why such other or further order or orders should not be passed as to this Court may seem fit and proper.

2.            At the same time of leave granting order dated 13.12.2015, the proceedings of Partition Suit No. 102 of 2007 then pending in the Court of Assistant Judge, Durgapur, Rajshahi was stayed for a period of 6(six) months from date and pending hearing of the Rule the parties were directed to maintain status quo in respect of possession and position of the suit land for a period of 6(six) months from date. However, the period of stay and the order of direction of maintaining status quo have not been extended further.

3.            The case of the petitioner as made out in the revisional application, in short, is that the petitioner as plaintiff filed Partition Suit No. 102 of 2007 on 11.11.2007 contending, inter alia, that the suit land as mentioned in the schedule of the plaint belonged to Fazullah Prang.  Said Fazullah Prang died leaving behind a son, the opposite-party No. 1, the plaintiff-petitioner and the predecessor-in-interest of the opposite-parties No. 2-8 as his legal heirs. The heirs of Fazullah Prang are possessing the property. The petitioner being the heir  got four annas share and  while he has been possessing  the same some difficulties has  arisen between the co-sharers therefore the plaintiff proposed to the other co-sharers for amicable partition but the later refused to make partition on 18.10.2017. Therefore, the petitioner findings no other alternative resorted to file the suit for partition for getting saham separately as his share. It has been stated in the petition that in spite of serving the notices upon the defendants they failed to appear in the Court for contesting the suit. The trial Court decreed the suit ex-parte against the defendants on 19.04.2009. Accordingly, the petitioner got saham in respect of  share of the schedule properties and the trial Court directed to effect partition amicable by metes and bounds within 40 (forty) days from the date of the decree. When the plaintiff did not get the suit properties pursuant to the decree, a survey knowing Advocate Commissioner was appointed for effective partition and accordingly, Advocate Commissioner submitted his report and the partition suit was finally decreed on 07.03.2012. The petitioner as decree holder filed Execution Case No. 02 of 2012, whereby he got his saham through Court on 09.07.2013. At that stage, the opposite-party No. 1 Md. Ahsan Prang filed Miscellaneous Case No. 16 of 2013 under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree and for restoration of the suit with a separate application for condonatoin of delay of 4 years 3 months 13 days under section 5 of the Limitation Act, which was allowed on 25.11.2014 and thereby restored the Partition Suit No. 102 of 2007 to its file and number.

4.            Being aggrieved by and dissatisfied with the said judgment and order dated 25.11.2014, the petitioner preferred Civil Revision No.75 of 2014 before the District Judge, Rajshahi who upon hearing the parties rejected the Civil Revision on contest. Being aggrieved the plaintiff as petitioner approached this Court and obtained the leave as stated above.

5.            Mr. Md. Khariul Alam, learned Advocate appearing for the petitioner having drawn the attention of this Court to the Rule 19A of Order V of the Code submits that the onus to prove that summons was duly served upon the defendant is on the plaintiff but the plaintiff can discharge his onus of proof showing the report of the process server along with a declaration that the process server served the summons and the onus is to be shifted upon the defendant to prove that the summons  were not served  in accordance with law.

6.            He next submits that since the process server submitted his report to the trial Court along with a declaration in favour of due services of summons, onus shifted to the defendant that summons were not duly served upon him.

7.            Mr. Md. Khairul Alam, learned Advocate seeks to rely on the decision in the case of Md. Insan Ali Vs. Mir Abdus Salam reported in 40 DLR(AD) 193.

8.            In contrast to the submissions of the learned Advocate of the petitioner, Mr. Shariful Islam, learned Advocate appearing for the opposite-party No. 1 submits that according to the process server report the summons were served upon one Md. Moksed Ali, son of the defendant who allegedly received the same on 21.11.2007 in presence of one Md. Khorshed Alam and Md. Israfil but the petitioner failed to bring the process server or the attesting witnesses to the Court in order to prove that the summons were duly served upon the defendant. 

9.            The learned Advocate for the opposite-party next submits that both the courts below concurrently found that the summons were not duly served  upon the defendants and as such this Court sitting on revisional jurisdiction under section 115(4) of the Code should not  interfere into the concurrent findings of the courts below.

10.        Heard the submissions of the learned Advocates and perused the materials on record including the provisions of law particularly the issue of service of summons.

11.        It appears that on 09.07.2013, the petitioner went to get possession of the suit land pursuant to the ex-parte decree and thereafter the defendant-opposite-party got definite information upon collecting an information slip dated 28.07.2013 about the ex-parte decree. The defendant filed Miscellaneous Case under Order IX, rule 13 of the Code for setting aside the ex-parte decree and for restoration of the suit to its file and number with a delay of 4 years 3 months and 13 days. The Miscellaneous Case was filed within 30(thirty) days from the date of knowledge of the ex-parte decree. The defendant-opposite-party examined himself as P.W. 1 and his son Md. Moksed Ali deposed as P.W. 2, while the plaintiff- petitioner  produced and examined 5 (five) witnesses as D.Ws including D.W. 5 Nayabe Nazir of the Court concerned. The positive findings of the courts below with regard to service of summons of the process server that it was not duly served upon the opposite-party-defendant herein with strict compliance with the provisions of law. It appears that Md. Moksed Ali P.W. 2 of the Miscellaneous Case deposed that he did not receive the summons on behalf of his father on 21.11.2007. In these circumstances, it is to be noted here that service of summons on a male number of the family would not constitute valid service unless the report of the process server contains a statement that there was no likelihood or the defendant who was absent at the time of service being not found at his residence with a reasonable  time, the  process server’s report must set out his action in full that the defendant was not found, without stating what effort was made to find him is not acceptable in law. In the instant case, on a reading of the report of the process server, I do not find that the mode of searching of the defendant was exhausted by the process server at all.

12.        The rule 70 of the CRO requires service of summons in presence of two independent local witnesses. From the report of process server, it could not be ascertained that the attesting witnesses who identified the house of the defendant are the persons of the locality since there is no address in his report dated 21.11.2007. With regard to the registered post, it appears that postal receipt shows that on 26.11.2007, the defendant received the summons putting his signature. The learned Judge compared the signature of the defendant with the signature of postal receipt and the signature appearing in the Okalatnama and the deposition sheet of the defendant are not the same. This being the concurrent finding of the courts below, this Court sitting on a revisional jurisdiction under section 115 (4) of the Code cannot interfere into such finding of the courts below accept on an error of law of an important question of law resulting in an erroneous decision passed by the courts below. It further appears from the deposition of the petitioner side that they failed to prove that the summons were duly served upon the defendant. The process server or the attesting witnesses who identified the house of the defendant were not brought into the Court to prove that the service was duly served upon the defendant. On a reading of rule 19A of Order V of the Code, it appears that this rule shows that service return duly submitted is to be accepted as evidence of the facts as to the service of summons but the rule does not give a go by to the mandatory provisions of rule 19 of Order V of the Code.

13.        The rule 19 provides for examination of serving officer with an endorsement that the Court shall verify from the deposition of serving officer whether the summons were served