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Judgment
Shiva Kirti Singh, J.—Heard the parties in detail at the stage of admission itself. By the impugned order dated 19.12.2005 passed by learned Munsif, Jamui in T.S. No. 18 of 1999 the prayer of the petitioner-defendant No. 2 for setting aside order for ex parte hearing of the suit has been rejected.
On behalf of the petitioner it has been submitted that presently the O.P. No. 2 is working under designation, Sr. Divisional Manager in the office of Indian Oil Corporation at Patna and he is the proper authority heading marketing division whereas in the plaint defendant No. 2 has been described as District Manager, the name by which the post may have been known earlier in the past. On that basis it has been explained that notice by ordinary process could not be served on defendant No. 2 and therefore the court ordered for substituted service by publication in a newspapers. It has further been submitted that the court below wrongly accepted publication of substituted service in Hindi Daily "Aatma-Katha" on the ground that it has circulation at Jamui but the relevant requirement of law was to ensure that notice should have been published in a national daily having wide circulation. It has been stated in paragraph-14 of the revision application that "Aatma-Katha" is not a national daily and has no marked circulation at Patna. On going through the impugned order it is found that the learned Munsif has failed to address himself to the submission relating to "Aatma-Katha" not being a national daily having a wide circulation. On that account he has erred in rejecting the prayer of the petitioner-defendant No. 2 for setting aside the order for ex parte hearing of the suit.
Considering all the facts and circumstances the impugned order is set aside and the prayer of defendant No. 2 is granted on the condition that as agreed before this Court he shall file his written statement within a period of one month from today. It will be in the discretion of the court below to grant opportunity to the plaintiff to amend the plaint in view of such written statement, if required in the interest of justice. However, if witnesses have already been examined then the court below shall ensure that they are allowed to be cross-examined or re-examined on account of permission being granted to defendant No. 2 to file WS and contest the suit on the merits. In the facts of the case the revision application is allowed to the aforesaid extent.