Upendra Chandra Rishi and others Vs. Sufia Begum and others, 42 DLR (AD) (1990) 285

Case No: Civil Appeal No. 73 of 1985

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Mr. M Nurullah,,

Citation: 42 DLR (AD) (1990) 285

Case Year: 1990

Appellant: Upendra Chandra Rishi and others

Respondent: Sufia Begum and others

Subject: Limitation, Procedural Law,

Delivery Date: 1990-2-25

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed CJ
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J
 
Upendra Chandra Rishi and others
...…………..Appellants
Vs.
Sufia Begum and others
………........Respondents
 
Judgment
February 25, 1990.
 
The Code of Civil Procedure, 1908 (V of 1908)
Order V r. 17
The Civil Rules & Orders Vol. I rr. 69 & 84 (e)
The service report not containing essential information about the grounds of refusal to accept the process and names of the persons witnessing the refusal under rule 84(e), the report cannot be accepted. And the courts below failed to consider this relevant provision of law and committed error. Considering the evidence adduced by the appellants not duly considered by the High Court Division and the trial court, it is convincingly proved that the defendant appellants came to know of the ex-parte decree for the first time on 20.7.1981. the miscellaneous case having been filed on 05.08.1989, the same was not barred by limitation……………………(20 & 23)
 
Lawyers Involved:
Rafique-ul Huq, Senior Advocate, instructed by Abu Backkar, Advocate-on-Record—For the Appel­lants.
M Nurullah, Senior Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record— For Respondent Nos. 1-4.
Ex part — Respondent No. 5.
 
Civil Appeal No. 73 of 1985
(From the Judgment and order dated 13.2.85 passed by the High Court Division, Dhaka in Civil Or­der No. 98 of 1985).
 
JUDGMENT

Mustafa Kamal, J.
 
This appeal by special leave is directed against the judgment and order dated 13.2.85 passed by a Division Bench of the High Court Division, Dhaka in Civil Order No. 98 of 1985 summarily reject­ing the appellant's application under section 115 of the Code of Civil Procedure and affirming the concurrent judgments and orders of the Courts below dismissing the appellants' Miscellaneous Case No. 151 of 1981 under Order 9 rule 13 of the Code of Civil Procedure.
 
2. Plaintiff-respondent Nos. 1-4 instituted Title Suit No. 589 of 1980 in the Court of Subordinate Judge, Dhaka for declaration of title to the suit land. The suit was decreed ex parte on 1.12.80 The defen­dant-appellants filed Miscellaneous Case No. 151 of 1981 on 5.8.81 under Order 9 rule 13 of the Code of Civil Procedure for setting aside the ex parte decree on the averments, inter alia, that the decree was ob­tained behind the back of the appellants without ser­vice of any summons upon them. The appellants and the respondents were parties in another suit, namely, Title Suit No. 637 of 1976 of the 1st Court of Munsif, Dhaka. On 20.7.81 when the appellants had been in the said Court in connection with the hearing of the said suit, they came to learn about the ex parte disposal of Title Suit No. 589 of 1980. On search the appellants came to know definitely on 28.7.81 about the impugned decree.
 
3. The respondents contested the case by filing a written objection contending inter alia that the summons and notices of the suit were duly served upon the appellants. They were aware of the filing of the suit but they did not appear to contest the suit intentionally.
 
4. In support of their respective cases the ap­pellants examined only one witness, appellant no. 3 Mohammad Hossain as PW 1. The respondents ex­amined OPW No. 1, Nurul Islam, husband of re­spondent no 1 and OPW no. 2 Motalib Bhuiyan, the process-server who served the summons in the suit.
 
5. The learned Subordinate Judge, 1st Court, Dhaka by his judgment and order dated 27.7.83 dis­missed the miscellaneous case on the finding that the appellants having failed to prove sufficiently their date of knowledge on 20.7.81 the miscellaneous case was barred by limitation. Further, the process server OPW No. 2 has proved the service returns Exts. A and Al showing service of summons upon the appel­lants on 2.7.80. He has also proved Exts. A to A5 showing service of show cause and notices of ad in­terim injunction.
 
6. The miscellaneous case was thus dismissed.
 
7. On appeal the learned Additional District Judge, 2nd Court, Dhaka by his judgment and order dated 31.12.84 and on revision a Division Bench of the High Court Division, Dhaka by judgment and order dated 13.2.85 affirmed the findings and decision of the learned Subordinate Judge.
 
8. Before filing the present Title Suit No. 589 of 1980 in the First Court of Subordinate Judge, Dhaka the respondents instituted Title Suit No. 637 of 1976 in the First Court of Munsif, Dhaka for permanent injunction against the appellants in respect of the self-same suit land. The earlier suit was pend­ing between the parties when the ex parte decree was passed in the later suit. In Title Suit No. 637 of 1976 the respondents' prayer for temporary injunc­tion was refused on contest up to the High Court Division. Leave was granted in this appeal to consid­er as to whether the subsequent suit was surrepti­tiously filed by the same plaintiff-respondents against the same defendant-appellants seeking declar­ation of title in the same suit land and whether in view of the pendency of the earlier suit between the parties the allegation of fraudulent suppression of summons adds a new dimension to the case. Leave was also granted to consider whether the Courts be­low and the High Court Division applied their judi­cial mind particularly in respect of the fact that the process-server OPW No. 2 did not give the address of the mokabila witnesses in the service return and whether the Court below ought to have relied upon the evidence of the process-server without examining the mokabila witnesses.
 
9. Mr. Rafique-ul Huq, learned Counsel for the defendant-appellants, has taken us through the plaints of the earlier suit, namely, Title Suit No. 637 of 1976 and the present Title Suit No. 589 of 1980. It is clear that the earlier suit was for a decree of permanent injunction and the present suit is for declaration of title in respect of the same land. The averments in the two plaints are almost interchange­able. It is also clear that in the present suit there is a complete suppression of the fact that the respondents filed an earlier suit in respect of the same suit land against the same defendants. Mr. Rafique-ul Huq has further shown that in the earlier suit the temporary injunction matter was contested upto the High Court Division and the parties were directed to maintain status quo. Mr. Rafique-ul Huq submits that there was no earthly reason for the appellants not to con­test Title Suit No. 589 of 1980 if they had received the summons of the suit, particularly in view of the fact that they had been contesting diligently the tem­porary injunction matter arising out of the suit for permanent injunction in respect of the same suit land. He submits that it is against human nature to stand by when an adversary was aiming at inflicting a big­ger harm when the attempted smaller harm was dili­gently faced and contested. Mr. Rafique-ul Huq sub­mits that suppression of the fact that a suit was pending between the parties over the self-same suit land is indicative of fraud on the part of the respon­dents and both the Courts below and the High Court Division failed to consider that the miscellaneous case was liable to be allowed on the ground of fraud alone.
 
10. Mr. M Nurullah, learned Counsel for the plaintiff-respondents, submits, on the other hand, that the cause of action and the reliefs prayed for in the two suits are vastly dissimilar, suit land being the same. The respondents had every right under the law to file any number of suits over the same cause of action. The only limitation is that the last suit will be stayed under section 10 of the Code of Civil Procedure. The respondents did not think it necessary to state that an earlier suit was pending between the parties, as the present suit sought a different relief and arose out of a separate cause of action. No fraud can be deduced therefrom, he submits.
 
11. The appellants clearly stated in their appli­cation under Order 9 rule 13 of the Code of Civil Procedure about the pendency of the earlier suit be­tween the parties. The fact that they were diligently pursuing the temporary injunction matter arising out of the earlier suit for permanent injunction is also a matter of record. It should have struck the Courts be­low that litigants who were contesting without la­ches a suit for permanent injunction in respect of the suit land would not ordinarily become disinterested to contest a subsequent suit for declaration of title in respect of the same suit land, if they have received the summons of the suit. In the temporary injunc­tion matter arising out of the title suit for permanent injunction a learned Single Judge of the High Court Division passed the last order on 24.1.79 in Civil Revision No. 47 with Civil Revision No. 890(R) of 1978, directing the parties to maintain status quo till the disposal of the earlier suit and directing the learned Munsif to dispose of the suit within 30th June, 1980 positively.
 
12. The respondents filed Title Suit No. 589 of 1980 on the 13th June, 1980. We are informed that the earlier suit namely, Title Suit No. 637 of 1976 is still pending. The filing of the second suit 2-1/2 weeks before the expiry of the deadline set by the High Court Division tantamounts to opening of a second front from behind while the first front was still active. The respondents did not at all disclose in the plaint of the last suit as to the existence of a suit between the parties over the same suit land. The re­liefs prayed for in the two suits may be different but the suppression of this information cannot but throw a cloud over the intention of the respondents.
 
13. This background has to be kept in mind while considering the question of service of sum­mons in the second suit. The two Courts below and the High Court Division were oblivious of it.
 
14. Mr. Rafique-ul Huq has drawn our atten­tion to the order sheet of the learned Subordinate Judge after registering Title Suit No. 589 of 1980. Order nos. 4-7 read as follows:
 
"4. 12.7.80. Summons served. Plaintiff files hazira. Service report appears to be not satisfactory. Issue summons upon the defendants through regd post. To 24.7.80 for requisites.
Sd./- ZH Md. Daud.
5. 14.7.80 Plaintiff files a petition praying for making the order of ad-interim injunction absolute and grant temporary injunction on the ground stated therein. Service of notice appears to be not satisfactory. Plaintiff to take step for the same by regd. post by the date fixed.
Sd./- ZH Md. Daud.
6. 24.7.80. Requisites put in. Issue the same fixing 10.9.80 for A/D. Plaintiff to put in receipt by the date fixed.
Sd./- ZH Md. Daud.
7. 10.9.80. Plaintiff files hazira. Registered summons served. None appeared on behalf of the defdts. To 29.9.80 for ex parte hearing.
Sd./- ZH Md. Daud.
 
15. It is very clear that on 12.7.80 the learned Subordinate Judge found that the report of service of summons of the suit was not satisfactory. On 14.7.80 the learned Subordinate Judge found service of notice of ad-interim injunction to be not satisfac­tory. He passed orders for issuance of summons upon the appellants through registered post. It is not clear why the learned Subordinate Judge did not pass orders for fresh service of summons through Court.
 
16. At the hearing of the miscellaneous case OPW 2, the process-server deposed and proved Ext. A series. It was a case of service by hanging as the appellants allegedly refused to receive the notices. These Ext. A series were found to be not satisfacto­ry on a bare perusal by the learned Subordinate Judge himself. Rule 69 of the Civil Rules and Orders provides that "service should always be personal wherever practicable (Ord. V r. 12) and the Courts ought not in ex parte cases to act upon anything short of personal service until they are satisfied that personal service could not reasonably be effected". It is not understood how on appearance of the process server as a witness the same reports, Ext. A series, gained acceptance by the same Court. OPW 2 did not improve upon his earlier reports by personal appear­ance in the Court. He did not throw any further light upon Ext. A series. The reports remained as they were. In particular, the names and addresses of mokabila witnesses were not noted in the service reports. The reports were found to be unsatisfactory by the learned Subordinate Judge earlier clearly because these were one-man show by the process-server him­self, unsupported and uncorroborated by any mokabila witness. The same malady persisted, when the process-server was examined in Court. Surely the same unacceptable reports could not gain acceptance by mere personal appearance of the process-server.
 
17. Since this is allegedly a case of refusal to ac­cept service, the following provisions of Order 5 rule 17 of the Code of Civil Procedure are to be kept in view:
 
"17. Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, can­not find the defendant, and there is no agent em­powered to accept service of the summons on his behalf, nor any other person on whom ser­vice can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed".
 
18. It is, therefore, obligatory upon the process-server to mention in his report the name and address of the person, if any, by whom the house was identi­fied and in whose presence the copy was affixed.
 
19. Also relevant is rule 84 (e) of the Civil Rules and Orders which provides as follows:
 
"(e) Where a person refuses to accept the process the grounds thereof, if any, and the names of the persons witnessing the refusal should be given."
 
20. The service reports, Ext. A series, are de­void of these essential information. The Courts below and the High Court Division have failed to consider the Order Sheet and the relevant provisions of law.
 
21. Although the service of summons of the suit was sought to be effected by registered post with acknowledgement due and although by Order No. 7 dated 10.9.80 the learned Subordinate Judge noted that registered summons were served, it is clear from the cross examination of OPW 1 Nurul Islam that the postal notices and acknowledgement dues were not in the records. In any case it is not the finding of the Courts below that the summons of the suit was served by registered notices. The two Courts below have found the summons to be served by the pro­cess-server. In the face of the contrary postures of the trial Court lingering doubts remain as to whether the process-server had at all effected any service when his uncorroborated reports were not relied upon earlier by the trial Court itself and when in the Court he pre­sented himself alone without corroboration.
 
22. The trial Court has held that the appellants could not prove satisfactorily that they came to know of the impugned decree for the first time on 20.7.81 during the hearing of the earlier suit in the 1st Court of Munsif, Dhaka, because they did not examine any other witness to corroborate the said story.
 
23. The Courts below have simply overlooked that the appellants and the respondents were contest­ing two suits at the same time over the same suit land. There has been a total non-application of mind insofar as this aspect of the appellants' case is con­cerned. The appellants are on record to have prosecuted the earlier suit diligently and there can be no earthly reason for them not to be present in Court on 20.7.81 for hearing of the earlier suit. It is also natural for the respondents to express themselves joyously over the fate of the subsequent suit, implying that they had no stake in the earlier suit any more. OPW 1 Nurul Islam admitted that he was present in the 1st Court of Mun­sif on 20.7.81, which shows that the appellants' state­ment regarding the date of hearing of the earlier suit was correct. OPW 1 of course stated that on that date appellant no. 2 Priya Dasi was present, but appellant no. 3 Md. Hossain was not present. Appellant no. 2 in both the earlier suit and the present suit is Priya Dasi, wife of appellant no. 1 Upendra Chandra Rishi. She is the only lady in both the suits. All other defen­dants in the two suits are men. Appellant no. 3 was added as a party to the earlier suit on an application under Order 1 rule 10 CPC. It is inconceivable that only a lady was present on 20. 7.81 during the hearing of the earlier suit, but the appellant no. 3, a person who on his own added himself as a party defendant in the earlier suit, was not present. These aspects were totally left out of consideration by the trial Court and the Court of appeal below. The appellants have con­vincingly proved that they came to know of the ex parte decree for the first time on 20.7.81. The miscel­laneous case having been filed on 5.8.81, the same was not barred by limitation.
 
Hence the appeal is allowed with costs. The ex parte decree dated 1.12.80 passed in Title Suit No. 789 of 1980 is set aside and the said suit is restored to its file and number.
 
Ed.