Case Note & Summary
The petitioner, Jasbirsingh Kohli, filed a writ petition challenging two orders: one by the Civil Judge, Junior Division, Kamptee dated 11.1.2017, and another by the Principal District Judge, Nagpur dated 25.7.2018, which confirmed the lower court's order. Both courts had concurrently found that the petitioner failed to prove that he was not duly served with the suit summons, and therefore refused to set aside the ex-parte decree under Order IX Rule 13 CPC. The petitioner contended that his address was not at Resham Oli or Garoba Maidan but at 44 Wanjara Layout, Kamptee Road, Nagpur, and that summons were never issued to that address. He relied on an LIC policy from 1987 as address proof. The respondent argued that concurrent findings of fact should not be interfered with in supervisory jurisdiction. The High Court observed that the LIC document from 1987 was not relevant for the period 2004-05 when summons were issued. The bailiff report stated that the petitioner had left his shop in Resham Oli area about one and a half years before the bailiff's visit. The petitioner did not examine the bailiff to challenge the report. The court held that the petitioner failed to discharge his burden of proof, and the concurrent findings were plausible. The petition was dismissed, and the rule was discharged with no order as to costs.
Headnote
A) Civil Procedure - Service of Summons - Order IX Rule 13 CPC - Setting Aside Ex-parte Decree - Concurrent findings of fact that petitioner failed to prove lack of service - Petitioner's address proof from 1987 was not relevant for 2004-05 when summons were issued - Bailiff report indicated petitioner had left the address - Petitioner did not examine bailiff - Held that no interference warranted in supervisory jurisdiction (Paras 4-8).
Issue of Consideration
Whether the courts below erred in holding that the petitioner failed to prove that he was not duly served with the suit summons, thereby refusing to set aside the ex-parte decree under Order IX Rule 13 CPC.
Final Decision
The petition is dismissed. Rule is discharged. No order as to costs.
Law Points
- Concurrent findings of fact
- supervisory jurisdiction
- Order IX Rule 13 CPC
- service of summons
- bailiff report
- burden of proof
Case Details
2018 LawText (BOM) (08) 159
Writ Petition No.5105 of 2018
Shri P.J. Mehta for Petitioner, Shri Shyam Dewani for Respondent
Jasbirsingh s/o. Ujagarsingh Kohli
Pratap s/o. Dayaram Dewani
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Nature of Litigation
Writ petition challenging orders refusing to set aside ex-parte decree under Order IX Rule 13 CPC.
Remedy Sought
Petitioner sought to quash the orders of the Civil Judge and Principal District Judge and set aside the ex-parte decree.
Filing Reason
Petitioner claimed he was not duly served with suit summons and the courts below erred in holding otherwise.
Previous Decisions
Civil Judge, Junior Division, Kamptee on 11.1.2017 and Principal District Judge, Nagpur on 25.7.2018 both held that petitioner failed to prove lack of service.
Issues
Whether the petitioner proved that he was not duly served with the suit summons.
Whether the High Court should interfere with concurrent findings of fact in supervisory jurisdiction.
Submissions/Arguments
Petitioner argued that his address was 44 Wanjara Layout, not Resham Oli, and summons were never sent to his correct address; courts below did not consider his address proof.
Respondent argued that concurrent findings of fact should not be interfered with, and no other view was possible.
Ratio Decidendi
Concurrent findings of fact that the petitioner failed to prove lack of service of summons are plausible and not perverse; the petitioner did not produce relevant address proof for the relevant period nor examined the bailiff to challenge the report. Hence, no interference in supervisory jurisdiction.
Judgment Excerpts
These two orders record concurrent findings of fact that the petitioner failed to prove his contention that he was not duly served with the suit summons...
The LIC policy was issued in the year 1987 and, therefore, these documents issued by the LIC would really be not relevant for deciding the question of the address of the petitioner in the year 2004-05 when the suit summons were issued.
There was a bailiff report also which categorically said that the petitioner had left his shop situated in Resham Oli area about one and half year prior to the visit of the bailiff to that address.
Procedural History
The Civil Judge, Junior Division, Kamptee passed an order on 11.1.2017 refusing to set aside the ex-parte decree. The petitioner appealed to the Principal District Judge, Nagpur, who confirmed the order on 25.7.2018. The petitioner then filed the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order IX Rule 13
