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Judgment
The petitioner- M/s Triveni Commercial Ltd. is aggrieved of order dated 03.05.2010 passed in Title Suit No.08 of 2003 by which the application
under Order 9 Rule 7 CPC for recall of order dated 16.07.2004 has been rejected.
By an order dated 04.01.2011 further proceeding in Title Suit No.08 of 2003 was stayed by this Court.
Shorn of unnecessary details, suffice would be to record that Title Suit No.08 of 2003 was instituted by M/s Daruka & Company seeking a
declaration “which one of the defendants is the lawful owner of the suit property†and for a decree for transfer of the suit property in favour of
M/s Daruka & Company because no one is realizing rent from the plaintiff.Â
The petitioner is defendant no.3 in Title Suit No.08 of 2003. Case pleaded by the petitioner is that after defendant no.1 - M/s Chrestien Mica
Industries Ltd. went into liquidation it has purchased the suit property in the year, 1983.Â
It appears that when defendant no.3 did not appear in the suit, substituted mode of service under Order 5 Rule 20 CPC was adopted by the plaintiff
and notice for appearance in the suit was published in the daily newspapers Prabhat Khabar and Asian Age on 25.06.2004 and 02.06.2004. Plea
taken by the petitioner for its non-appearance in Title Suit No.08 of 2003 is that the Managing Director of defendant no.3- Company resides at
Calcutta and its office at Koderma is virtually non-functional. Â
Once it is found that a notice was published in the daily newspaper- Asian Age which has wide circulation in Calcutta, it must be construed in law
that the defendant no.3 has been validly served notice for its appearance in Title Suit No.08 of 2003. In fact, the defendant nos.1 to 3 were
thereafter served summons also on 26.07.2007. However, considering the nature of declaration sought in Title Suit No.08 of 2003, the defendant
no.3 which is purchaser of the suit property and which, thus, has substantial interest in the suit property, in my opinion, deserves an opportunity to
contest the suit on merits. Normally, parties should be granted permission to contest the suit on merits; a technical knock-out as the Supreme Court
has observed should be avoided.
Accordingly, impugned order dated 03.05.2010 is set-aside with cost of Rupees one lac which shall be paid to Koderma District Bar Association
within four weeks.
The writ petition stands allowed, in the aforesaid terms.