Neeraj Kumar, S/o Sri Bisheshwar Singh vs Laxmi Nath Gope

Gautam Kumar Choudhary, J

Heard, learned counsel for the parties.

Petitioners are  the  original  defendants  in  Title Suit No.150/2009 which was filed for declaration that power of attorney  bearing  registered  Sale  Deed  No.3054 dated 29.12.2008  and  the  registered  Sale  Deed  No.386  dated 29.01.2009, were vitiated by fraud and misrepresentation and consequently, non-binding on the plaintiff.

The said suit was decreed ex-parte and the defendants moved the trial Court under Order IX Rule 13 of the CPC to set aside the judgment and decree passed ex-parte which was dismissed vide order dated 16.07.2018 in Misc. Case No.10/2014. The defendants preferred appeal under Order XLIII Rule 1(d)) of the CPC before the Additional Judicial Commissioner, Ranchi, being Misc. Civil Appeal No.01/2018 which has also been dismissed on 18.01.2020 and being aggrieved by the order, instant civil miscellaneous petition has been filed.

It is argued by the learned counsel on behalf of the petitioners that the registered instrument of conveyance has a presumptive value and in order to cancel or declare such an instrument, there needs to be pleading and evidence. Here in the present case, without due service of notice, the registered power of attorney and the sale-deeds have been cancelled by passing an ex-parte order.

It is submitted by learned counsel for the petitioners that the notices were purported to be served on the petitioners by substituted service of notice by paper publication which is not in very much circulation and the case was of the year, 2009. It is contended in this regard that in order to be effective service by paper publication, it should be made in the Daily Newspaper having wide circulation in the last known address of the petitioners. In the case at hand, notice has been published in daily newspaper ‘aaz’ which has now almost gone out of publication. Reliance is placed on Dwarika Prasad (D) through LRs. v. Prithvi Raj Singh, 2024 (0) Supreme (SC) 1239 that the Court should not shut out cases on mere technicalities, but rather afford opportunity to both sides and thrash out the matter on merits.

Learned counsel for the Opp. Party(s) submits that the learned Appellate Court while hearing Civil Misc. Appeal No.01 of 2018 had taken note of the fact that these petitioners had deliberately given false address in Misc. Case No.10/2014 of Laxmi Nath Gope and Shankar Gope, the original plaintiffs who were arrayed as Respondent Nos.1 and 2 in Civil Misc. Appeal No.01 of 2018. It has been recorded in the impugned order that address of the Plaintiffs was wrongly given as C/o Surajmohan Mahto, Hinoo, PS- Doranda, District- Ranchi, therefore, could not be served on these defendants whereas the correct address is of Village- Dandai, Footkal Toli, PO- Simaliya, PS- Ratu, District- Ranchi.

This plea does not hold much ground in view of the fact that the address given in Civil Misc. Appeal No.01 of 2018 is the same address as well as in the instant CMP. The notices were issued and were served and on the basis of it, the parties did not appear. Therefore, the very reasoning in Paras 11 and 12 of the impugned order appears to be somewhat flawed. Moreover, considering the nature of case and relief(s) sought for, it was incumbent on the part of the learned Trial Court to have decided the matter on merits.

Accordingly, the impugned order is set aside.

The instant CMP is allowed. Pending I.A(s), if any, also stands disposed of.