Ramdhani v. Smt. Lukhari Devi @ Saraswati Devi

represented by Mr. Birendra Kumar Singh. It is the contention of Mr. Dwivedi relying upon Section 283 of the Indian Succession Act, 1925 (hereinafter referred to as „the Act‟) as also the provisions of Order 9 rule 13 of the Code to Patna High Court MA No.288 of 2010 (6) dt.30-08-2013 2 submit that the trial court even without recording satisfaction as regarding the service of notice upon the parties to the contest, has proceeded to dispose of the case. It is the contention of Mr. Dwivedi that the mandatory provisions underlying the Act and the Code having not been followed in the present case, the order impugned stands vitiated. With reference to the records of Probate Case No. 6 of 1971 as well as the records of the Misc. Case it is submitted that the satisfaction of the court below is manifestly missing on the aspect of service of notice. It is stated that neither could the respondent establish that the petitioner had prior knowledge of the ex parte order during the course of deposition in the Miscellaneous case nor has the court expressed satisfaction as regarding the service of notice upon the appellants or their father. He thus submits that in the circumstances, the findings in the order impugned are unsustainable and fit to be set aside. The argument of Mr. Dwivedi has been contested by Mr. Singh appearing for the sole respondent who with reference to the order impugned submits that the court below upon examination of the records has opined that it is plainly unbelievable that the petitioner being the own cousin brother of the respondent, did not have notice regarding the Probate. However, learned counsel could not get any support from the evidence adduced by the Patna High Court MA No.288 of 2010 (6) dt.30-08-2013 3 parties supporting his submission on service of notice and/or the knowledge gained by the appellants about the ex parte order. It is further with reference to the observation of the court below in paragraph-3 of the impugned order submitted that since the father of the petitioner Jhari Mandal had refused to receive the summons, the same would amount to deemed service and would not be a case of an ex parte decree. I have heard learned counsel appearing for the parties and I have perused the materials on record. The appellant as well as the sole respondent are descendant from a common ancestor Haro Mandal. The family genealogy has been explained by the appellant in paragraph-3 of the memo of appeal and a perusal thereof manifests that Haro Mandal was survived by three sons, namely, Masudan Mandal, Sahodar Mandal and Jhari Mandal. Whereas Sahodar Mandal died issueless, the sole respondent Smt. Lukhri Devi is the daughter of Masudan Mandal and the appellants herein, namely, Ramdhani Mandal and Lalmuni Mandal are sons of Jhari Mandal. The facts of the case in brief is that Lukhari Devi had filed a case under Section 276 of the Act for grant of Probate of the will stated to have been executed by her father late Masudan Mandal on 25.8.1967. Masudan Mandal had died on 26.8.1969. Initially a Patna High Court MA No.288 of 2010 (6) dt.30-08-2013 4 case was filed by Smt. Lukhari Devi on 26.9.1969 giving rise to Probate Case No. 20 of 1969 but the same was dismissed for default on 19.6.1970. The said Probate Case was never restored rather Smt. Lukhari Devi filed a second case in March, 1971 giving rise to Probate Case no. 6 of 1971. The probate was allowed vide judgment and order dated 14.3.1973. It is the case of the appellants that the filing of the probate case was neither known to their father Jhari Mandal who deceased in 1997 nor did they have any knowledge about the ex parte order rather they gathered knowledge about the same from one Yogendra Paswan on 26.8.2004 and whereafter making inspection of the records by filing an inspection slip on 31.8.2004, they became aware of the ex parte order. It is the case of the appellants that immediately thereafter and within 30 days of gathering knowledge they filed an application under Order 9 rule 13 of the Code alongwith an application under Section 5 of the Limitation Act and which has been dismissed by the order impugned on grounds that the appellants have themselves admitted gathering knowledge of the ex parte decree in the year 1997 and secondly that even if the service of summons on Jhari Mandal was defective by the non- examination of the serving officer under Order 5 rule 19 of the Code but since he had knowledge about the case hence the defect Patna High Court MA No.288 of 2010 (6) dt.30-08-2013 5 is not so fatal for setting aside an ex parte decree after a gap of 31 years. The two situations on which an application under Order 9 rule 13 rests is: (a) that the summons were not duly served or (b) that despite notice, the party complaining was prevented by a sufficient cause from appearing in the suit. If the party complaining is not able to satisfy the Court on either of these two aspects, a mere irregularity in the service of summons, would not be sufficient to set aside an ex parte decree. In other words if the decree holder is able to demonstrate that the party complaining had full knowledge of the hearing of the suit or proceedings and had consciously avoided to contest the same then the applicant would be covered by the second proviso of Order 9 rule 13 and would not stand to benefit from any irregularity whatsoever in the service of summons. The question is whether these conditions are satisfied in the present case. Although the sole respondent has stated about service of notice on the father of the appellants and his refusal thereto but the records of Probate Case No. 6 of 1971 which has been summoned under the orders of this Court does not reflect this position. On the contrary right since the institution of the case, despite notice having been served in terms of Section 283 of the Patna High Court MA No.288 of 2010 (6) dt.30-08-2013 6 Act on the District Magistrate cum Collector, neither any report as to the publication of notice nor any report as to the valuation of the property was forwarded by the Collector and which situation is recorded all through in the order sheet of the probate case. In fact even in the order dated 12.9.1972, the court below while taking note of the deposit of the challans towards probate duty by the petitioner in the probate case, as against the valuation of the property, has observed that the report on valuation has not yet been received from the Collector. The trial court despite this position proceeded to hear the matter ex parte even without recording a satisfaction as regarding the service of notice or the fulfillment of the mandatory requirements of Section 283 and without fixing the matter for ex parte hearing. The observation of the trial court regarding knowledge of the appellants about the ex parte order at page 11 of the impugned order, is an error of record inasmuch as the statement in paragraph-11 of the petition filed under Order 9 rule 13 contains no such admission of the appellants regarding knowledge rather the appellants have stated that even their father did not have any knowledge about the ex parte order until his death in 1997. The evidence led by the parties is absolutely silent either on the issue of knowledge to the appellants about the ex parte order or on the service of summons. Even the Patna High Court MA No.288 of 2010 (6) dt.30-08-2013 7 trial court is absolutely silent in recording his satisfaction on the service of summons both in the Probate Case as well as in the Misc. Case. The absence of recording of satisfaction by the trial court regarding service of summons on the appellants or their father and the non-examination of the process server in terms of Order 5 rule 19 is fatal for the issue in hand. Although the duty cast upon the trial court under the provisions of Order 5 have been subject matter of catena of decisions but I am tempted to refer to a judgment of the Supreme Court reported in (2002) 5 SCC 377 (Sushil Kumar Sabharwal vs. Gurpreet Singh and others), more particularly paragraph-12 thereof, the relevant portion whereof is reproduced hereinbelow:- “12……….The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being “proved” that the summons was duly served when and when alone, the court is conferred with a discretion to make an order that the suit be heard ex parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or casual approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex Patna High Court MA No.288 of 2010 (6) dt.30-08-2013 8 parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his………” Order 5 rule 17 and 19 of the Code clearly lays down a procedure to be followed by the trial court upon a refusal by the party to accept notice. Thus even if it is the case of the sole respondent that the father of the appellants had refused to accept summons, the court below was mandatorily required to satisfy itself as to whether the procedures of rule 17 of Order 5 had been followed. In the present case except for the statement of the sole respondent, the records of the probate case reflects no such attempt by the trial court to satisfy itself on this score and surprisingly even the court below while hearing the application filed by the appellants under Order 9 rule 13 of the Code, despite taking note of the infraction of the provisions of Order 5 rule 19 of the Code, has chosen to ignore the same. A service of summons is an issue of the fact and the fact has not been proved by the respondent. In view of my discussions hereinabove, the order passed by the court below as impugned in this appeal cannot be sustained and is set aside. For the same reasons Misc. Case No. 58 of 2004 / 1 of 2005 is allowed and Probate Case No. 6 of 1971 is restored to its original file. As a period of 31 years has lapsed, the trial Patna High Court MA No.288 of 2010 (6) dt.30-08-2013 9 court should take up of the matter and dispose of the same in accordance with law giving it utmost priority within a maximum period of 6 months from the date of receipt/production of a copy of the order. Since the parties are in attendance before this Court, they shall be duty bound to cooperate in the expeditious disposal of the case. This appeal is allowed but in the circumstances without any order as to costs. Let lower court records be transmitted to the court below forthwith and without any further delay. S.Sb/- (Jyoti Saran, J)