Bishwanath Chaudhary v. Sri Hari Krishna Sah

Heard Mr. Nagendra Rai, the learned counsel for the appellants in support of this appeal. The learned counsel for the respondent is also present. The plaintiffs are the appellants in this appeal assailing the judgment and decree of affirmance upholding the dismissal of the suit filed by the plaintiffs for setting aside the ex parte decree dated 12.02.1976 passed in earlier eviction suit no. 567 of 1971. The plaintiff no. 1 and 2 are the husband and wife and have accepted that they are in possession of the suit shop, which Patna High Court SA No.22 of 2010 (11) dt.22-01-2013 2 was the subject matter of T.S. No. 567 of 1971, as tenant under the defendant-respondent. They have prayed for setting aside the ex parte decree passed in Title (Eviction) Suit. No. 567 of 1971 on the ground that the summons of the said suit had fraudulently been not served upon them. The defendant contested the claim of the plaintiff and asserted that the summons in the said suit had been validly served and thereafter the ex parte decree had been passed when the defendants of the suit did not appear. The trial court on scrutiny of the evidence and pleading of the parties returned the finding that the summons had been validly served in Title (eviction) Suit No. 567 of 1971 upon the defendants and the alleged fraud in service of summons could not be established by cogent evidence by the plaintiffs. The appellate court also, on re-appraisal of the evidence, affirmed the findings of the trial court after coming to the conclusion that the fraud as alleged had not been established. Mr. Nagendra Rai, the learned counsel appearing for the appellants has firstly submitted that the appellants had filed a petition under Order 41 Rule 27 C.P.C. during the pendency of the appeal in the appellate court below seeking to adduce additional evidence relating to employment of appellant no. 1 in cement factory in Mirjapur at the relevant time. It has been pointed out by Mr. Rai that the appellate court by order dated 19.11.1994 directed Patna High Court SA No.22 of 2010 (11) dt.22-01-2013 3 the said application to be considered at the time of hearing of the appeal. It has been urged therefore that the appellate court below has failed to consider the said application and dispose it of when the appeal was taken up for hearing and as such the appellants have been prejudiced. Mr. Rai has also drawn the attention of the court about the proposed substantial questions of law mentioned in the memo of appeal. It has been next contended that both the courts below have misappreciated the evidence on record in coming to the conclusion that the summons in Title (Eviction) Suit no. 567 of 1971 had been validly served upon the defendant of that case. It has also been canvassed by the learned counsel that the appellants are admittedly tenants but they had not been given opportunity to contest the prayer for their eviction. After considering the submissions on behalf of the appellants and perusing the impugned judgments of both the courts below, it is pellucid that the appellants are admittedly the tenants of the respondent. The Title (Eviction)Suit no. 567 of 1971 was filed by the respondent seeking eviction of the appellants from the suit shop on the ground of default in payment of rent and also personal necessity. The said suit was decreed exparte and thereafter the subsequent suit i.e. T.S.No. 90 of 1981 has been filed by the appellants praying for setting aside the said exparte decree on the ground of fraud in service of summons. Both the courts below Patna High Court SA No.22 of 2010 (11) dt.22-01-2013 4 have concurrently recorded the finding that the fraud in service of summons could not be established by cogent evidence. So far as the submission with regard to the finding under Order 41 Rule 27 C.P.C. is concerned, there is no material on the record of this appeal to show that the said application which had been ordered to be considered at the time of hearing was pressed by the appellants when the hearing of the appeal had been taken up by the learned court below. It is true that the appellate court below had directed for consideration of the said application at the time of hearing of the appeal which was the correct course in view of the law laid down by the Apex Court in the decision reported in 2012 (8) SCC 148 but the appellants were still required to press their application when the hearing of their appeal was taken up. In absence of any mention in the impugned judgment of the appellate court below in this regard or any other material to substantiate the fact that the said application was pressed at the time of hearing the judgment passed by the appellant court below cannot be said to be vitiated on that score. Even otherwise also, it is apparent from the submission on behalf of the appellants that the appellants wanted to adduce in additional evidence a document relating to the service of appellant no. 1 in a cement factory at the relevant time and even if the said fact is accepted to be true, it still will not lead to the presumption that the fraud had been committed in the Patna High Court SA No.22 of 2010 (11) dt.22-01-2013 5 service of summons. Further the evidence on record which has been considered by both the courts below also show that after the refusal by appellant no. 1 to accept the service of summons the same was served in accordance with the procedure under order 5 Rule 17 C.P.C. and the said fact has also been established by evidence. Further the appellate court below has also considered the plea of the plaintiff no. 1 that he was working as driver in Mirzapur(U.P.), which fact was also sought to be substantiated by the proposed additional evidence, but thereafter has concluded that the plaintiffs had full knowledge of the T.S. No. 567 of 1971. It is settled law that non-service of summons will not be sufficient for grant of a decree in a suit for setting aside an ex parte decree and fraud as a fact in non-service of summons is necessarily to be established for the relief. It is also manifest from the records that the T.S. No. 567 of 1971 was decreed on 12.02.1976 but the later suit i.e. T.S. No. 90 of 1981 has been filed after the lapse of nearly 5 years. It also further appears that the plaint of T.S. No. 90 of 1981 has not been verified by the plaintiffs and the affidavit in supported of the same has not been sworn by the plaintiffs and it was the brother-in-law of the plaintiff no. 1 who has verified and sworn the affidavit. The plaintiffs have accepted that the said brother-in-law has all along been in the suit house. The report (Ext. C) of the process server, relied by both the courts below, Patna High Court SA No.22 of 2010 (11) dt.22-01-2013 6 shows that the appellant no. 1 was present and refused to accept the summons and his wife (appellant no. 2) was under curtain and so the service of summons was affected by hanging its copy on the door of the house. Even if it is accepted that the appellant no. 1 was not in the house, his brother-in-law was admittedly there and could have got the knowledge of the said suit. Thus, there is no infirmity in the findings by both the courts below that the plaintiff- appellants had the knowledge of the eviction suit. The courts below have also taken the notice of the fact that the appellants as tenants have not produced any evidence that they had ever paid any rent to the land holder. During the course of hearing of this appeal also, non-payment of rent since 1962 has not been denied. The appellate court below has also taken into notice Ext. 1/1 which shows that the appellant no. 2 had unsuccessfully sought to obtain a ‘Parcha’ under Bihar Privileged Persons Homestead Tenancy Act for the suit house. It is thus plain and patent that the appellants as tenants have filed the subsequent suit for litigation sake and with manifest purpose to prolong the execution of the eviction decree against them. The findings of both the courts below have been recorded after appreciation of evidence and no perversity in any manner is established. For the aforesaid premised reasons, is no Patna High Court SA No.22 of 2010 (11) dt.22-01-2013 7 substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)