Wazed Ali Sardar (Md) Vs. Md. Afsaruddin Sardar and others, 48 DLR (AD) (1996) 159

Case No: Civil Appeal No. 2 of 1995

Judge: Md. Ismailuddin Sarker ,

Court: Appellate Division ,,

Advocate: Mr. SS Halder,,

Citation: 48 DLR (AD) (1996) 159

Case Year: 1996

Appellant: Wazed Ali Sardar (Md)

Respondent: Md. Afsaruddin Sardar and others

Subject: Burden of Proof, Revisional Jurisdiction, Procedural Law,

Delivery Date: 1995-7-5

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Md. Ismailuddin Sarker J
 
Wazed Ali Sardar (Md)
…………… Appellant
vs
Md. Afsaruddin Sardar and others
……………...Respondents
 
Judgment
July 5, 1995
 
Code of Civil Procedure (V of 1908)
Section 115
Order IX rule 13
Once the defendant denies service of summons upon him the whole onus shifts to the plaintiff who has to prove satisfactorily that summons was in fact duly served. Since the finding of the trial court as to non-service of summons cannot be said to be unreasonable and perverse, the High Court Division erred in law in setting aside that finding entering into a question of fact while exercising revisional jurisdiction.
 
Lawyers Involved:
SS Halder, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record — For the Appellant.
Abdur Rahim, Advocate-on-Record — For the Respondent No.1.
Not represented—Respondent Nos. 2-36.
 
Civil Appeal No. 2 of 1995.
 
JUDGMENT
 
Md. Ismailuddin Sarker J:
 
This appeal by leave by defendant No.36 appellant raises a question of law as to whether the High Court Division was justified in interfering in revision with a finding of fact made by the trial Court in a proceeding under Order IX rule 13 of the Code of Civil Procedure as to non-service of summons upon the appellant.
 
2. Respondent No. 1 tiled Title Suit No.5 1 of 1970 in the Court of Subordinate Judge at Khulna for declaration of his title to the suit land measuring 11.64 acres. The suit was later on transferred to the Court of Subordinate Judge, Satkhira and renumbered as Title Suit No.5 14 of 1981. Amongst other defendants defendant No.15 filed a written statement stating, inter alia, that he has sold some of the suit land to the appellant and others whereupon respondent No.1 impleaded those purchase as defendant Nos. 30-36. The Suit was ultimately decreed exparte on 28-1-1985.
 
3. Thereafter the appellant preferred Miscellaneous Case No.79 of 1986 under Order IX rule 13 of the Code of Civil Procedure praying for setting aside the ex parte decree on the grounds, inter alia, that no summons of the suit was served upon him which was fraudulently suppressed in collusion will the process server and he came to know about the ex parte decree on 27-7-1968 from one Binoy Krishna Bachar. He then went to the Court on 29.7.1986 and came to learn about the exparte decree and thereafter filed the Miscellaneous Case.
 
4. Respondent No. 1 contested the miscellaneous case by filing a written objection denying the allegations of the petitioner and contending, inter alia, that the summons was duly served upon the appellant and that there was no suppression of the summons and the suit was decreed in due course.
 
5. The appellant examined three PWs. including himself and the respondent No.1 examined two DWs. including himself. In view of Order No.89 dated 25-3-1976 passed by the Subordinate Judge, Khulna in the suit stating that defendant Nos. 30-36 appeared by separate vokalatnamas and filed separate petitions praying for adopting the written statement filed by defendant No. 15 which was allowed, the learned Subordinate Judge, Satkhira directed the Bench Assistant to file a report. The Bench Assistant tiled his report on 29-8-1988 stating, inter alia, that although the summons which were served upon the defendants were mentioned in the firisti there was no mention of the summons upon the appellant in the firisti. The learned Subordinate Judge noticed that though it was recorded in Order No.89 dated 25-3-1976 by the Subordinate Judge, Khulna that the appellant appeared in the suit by filing vokalatnama no vokalatnama was found with the record nor there was any mention of the summons in the name of the appellant in the firisti. The learned Subordinate Judge also compared the admitted signatures of the appellant with his alleged signature in the petition for adopting the written statement of defendant No.15 by him Considering the evidence on record and the record of the case, the learned Subordinate Judge by his order dated 30-11-1988 allowed the miscellaneous case and set aside the exparte decree on condition of payment of Taka 300.00 as costs by the appellant on the finding that no summons was served upon the appellant and that he came to learn about the ex parte decree for the first time on the date as alleged by him.
 
6. Against the aforesaid order of the Subordinate Judge setting aside the ex parte decree respondent No.1 moved the High Court Division in revision and obtained a Rule in Civil Revision No. 166 of 1989 (Jessore), renumbered as Civil Revision No. 3778 of 1991 (Dhaka).
 
7. A learned Single Judge of the High Court Division by the impugned judgment and order dated 3-7-1994 made the Rule absolute and setting aside the order passed by the learned Subordinate Judge set aside the exparte decree.
 
8. Mr. SS Halder, learned Counsel appeared on behalf of the appellant and submitted that the learned Judge of the High Court Division had committed an error of law occasioning failure of justice in reversing the finding of fact arrived at by the trial Court in revision without considering that the trial Court came to the finding after thorough enquiry into the matter and the evidence on record, in particular, the report submitted by the Bench Assistant. There is substance in the contention of the learned Counsel for the appellant.
 
9. Mr. A M Rahim, learned Advocate-on-Record appearing on behalf of the respondent No. 1, could not furnish any satisfactory explanation as to non-mentioning of the summons upon the appellant in the firisti filed in the suit. (as per report of the Bench Assistant).
 
10. In an application under Order IX, rule 13 of the Code of Civil Procedure praying for setting aside the ex parte decree the whole onus is upon the plaintiff to prove that summons was duly served upon the defendant. Respondent No.1 failed to prove by adducing cogent evidence that summons was duly served upon the appellant, Although the learned Judge of the High Court Division noticed that the return of the summons alleged to have been served upon the appellant and the vokalatnama alleged to have been filed by the appellant were missing from the record gave much stress to the order dated 25-3-1976 and without considering the report submitted by the Bench Assistant erroneously found that the trial Court was wrong in holding that summons was not served upon the appellant. The learned Judge of the High Court Division also erred in law in holding that the trial Court was wrong in comparing the signature of the appellant appearing in the alleged application dated 25-3-1976 with his admitted signatures. Rather, the learned Judge of the High Court Division exceeded his jurisdiction in revision in entering into a question of fact and in comparing the signatures himself to arrive at a contrary finding of fact. The finding of fact as to non-service of summons made by the trial Court was not perverse, nor was it such as could legitimately justify an interference by the revisional Court on accepted principles. For the reasons stated above the judgment and order of the learned Judge of the High Court Division is liable to be set aside.
 
In the result, the appeal is allowed without any order as to costs.
 
Ed.