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Thakurdas Majhi v. Chand Majhi And Another Opposite Parties.
Factual and Procedural Background
The opinion concerns a Rule proceeding under Section 115 of the Civil Procedure Code (CPC) arising from an application under Order IX, Rule 13 CPC to set aside an ex parte decree in a partition suit (registered as T.S. 69/1947). The applicant (who was defendant No. 3 in the partition suit) claimed that no summons had been served on him and that he became aware of the ex parte decree within thirty days, so that his application under O. IX, R. 13 was timely. The present petitioner (who was defendant No. 1 in the original suit) opposed the application, contending that the applicant had knowledge of the suit and the decree long before the thirty-day period. The parties examined themselves and other witnesses before the trial court.
The learned Subordinate Judge accepted the evidence of the applicant (defendant No. 3), allowed the application under O. IX, R. 13 on terms (including payment of costs as a condition precedent), set aside the ex parte decree and restored the suit for rehearing, despite the application having been filed roughly seven years after the ex parte decree. The present Rule (under Section 115 CPC) challenged that decision.
Legal Issues Presented
- Whether the appellate court (in a Rule under Section 115 CPC) may interfere with the trial court's acceptance of oral evidence and credibility findings which led to allowing an application under O. IX, R. 13 to set aside an ex parte decree.
- Whether, in a suit originally instituted in forma pauperis, the filing/granting of the pauper application (under Order XXXIII, Rule 8) and related steps (including a Vakalatnama filed in the pauper proceeding) can substitute for service of summons under Order V, Rule 1, thereby making formal service of summons unnecessary.
- Whether the proviso to Order V, Rule 1 (exemption from service where the defendant has appeared at presentation of the plaint and admitted the plaintiff's claim) is satisfied by appearance/consent in the pauper proceeding or by a Vakalatnama filed in the pauper application.
Arguments of the Parties
Applicant (defendant No. 3) — Applicant's Arguments
- The applicant asserted that no summons of the suit had been served upon him.
- The applicant stated that he came to know of the ex parte decree within thirty days and therefore the application under O. IX, R. 13 was filed within the limitation period for setting aside the decree.
Petitioner (contestant, defendant No. 1) — Petitioner's Arguments
- The petitioner argued that the applicant had knowledge of the suit and of the decree at all material times and long before the thirty-day limitation period for an application under O. IX, R. 13.
- In response to the difficulty that the Subordinate Judge had accepted the applicant's evidence, counsel for the petitioner (Mr. Dutt) advanced a legal contention: because the partition suit had been instituted in forma pauperis (Misc. Case No. 19/1947) and Order XXXIII, Rule 8 deems the pauper application to be the plaint when allowed, the filing of the pauper application and the related Vakalatnama could be treated as the plaint/appearance in the suit, thereby obviating the need for formal service of summons under Order V, Rule 1. Mr. Dutt relied on a Madras decision (Sonnamal v. Coimbatore Maha Jana Bank Ltd., AIR 1934 Mad 690) to support the proposition that a Vakalatnama in the pauper proceeding may operate for the purposes of the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sonnamal v. Coimbatore Maha Jana Bank Ltd., AIR 1934 Mad 690 | Held that a Vakalatnama filed in connection with a pauper proceeding (Misc. Case) may, in law, be the Vakalatnama for the party in the subsequently registered suit. | The court considered the decision as a concession/relaxation in favor of a party but rejected using it to override or nullify the mandatory provision of Order V, Rule 1 CPC. The court declined to apply Sonnamal in a manner that would negate the requirement of service of summons where the proviso to O. V, R. 1 is not satisfied. Thus, the precedent was noted but not followed to the extent urged by counsel. |
Court's Reasoning and Analysis
The court's analysis proceeded in the following main steps, closely following the reasoning expressed in the opinion:
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Standard of interference under Section 115 CPC:
The court emphasized that this Rule proceeding is under Section 115 CPC and observed that the learned Subordinate Judge had accepted the oral evidence of the opposite party. Because the Subordinate Judge's conclusion depended principally on assessment of oral testimony (a matter of belief or disbelief of witnesses), the appellate court should not interfere with that acceptation of evidence under Section 115. The court treated the assessment of credibility as a factual matter that bars interference in the absence of demonstrable legal error.
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Legal point raised by counsel (service of summons and pauper proceedings):
Counsel for the petitioner (Mr. Dutt) sought to avoid the difficulty created by the Subordinate Judge's acceptance of the applicant's evidence by arguing that, in the particular facts, service of summons was not required in law. The court carefully examined this contention.
It was acknowledged that Order XXXIII, Rule 8 deems the pauper application, when granted, to be the plaint for the pauper suit. The court accepted that for certain purposes (for example, limitation) the suit may be treated as having been instituted when the pauper application was filed. However, the court distinguished between those deeming consequences and the actual procedural requirement of issuing and serving summons after the suit was formally registered.
The court held that the suit "actually came into existence" when the pauper application (deemed plaint) was registered and assigned a suit number (T.S. 69/1947). Thereafter, under Order V, Rule 1, service of summons on the defendant is obligatory in every suit unless the proviso to that rule applies (i.e., the defendant had entered appearance at presentation of the plaint and admitted the plaintiff's claim). The court concluded the present case could not be brought within that proviso.
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Factual findings on service in the record and court practice:
The court noted that after registration of the suit the plaintiff was directed to furnish process fees and copies of the plaint and that the court directed service of summons on the defendants. The peon's return was accepted by the learned Subordinate Judge, and actual service upon defendant No. 3 (the present applicant) occurred before the suit proceeded. The court observed that this practice in civil courts is salutary and in accordance with law.
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Treatment of the Sonnamal decision and the Vakalatnama point:
The court considered the Madras decision (Sonnamal) cited by Mr. Dutt, which held that a Vakalatnama in a pauper proceeding may be treated as a Vakalatnama for the suit. The court characterized that decision as a concession or relaxation in favour of a particular party and held that it could not be used to undermine the express statutory provision in Order V, Rule 1. The court warned against construing the deeming provision of O. XXXIII, R. 8 so as to whittle down the mandatory requirement of O. V, R. 1 and render it irrelevant in pauper suits.
Further, the court noted that the plaintiff's claim had been materially changed by amendment at a later stage; since the amendment relates back to the date of presentation of the plaint, the earlier appearance/consent in the pauper application could not be treated as an admission of the materially amended claim. Therefore, even if the Sonnamal view were extended to treat appearance in the pauper proceeding as appearance in the suit, the proviso to O. V, R. 1 would still not be satisfied in the present circumstances.
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Conclusion from the combined legal and factual assessment:
Because the case involved assessment of oral evidence accepted by the trial court (a credibility finding) and because the legal point on pauper proceedings and Vakalatnama could not be sustained so as to avoid service of summons or satisfy the proviso to Order V, Rule 1, the appellate court found no ground to interfere with the Subordinate Judge's order under Section 115 CPC.
Holding and Implications
Holding:
THE RULE FAILS AND IS DISCHARGED.
Implications / Direct consequences:
- The Rule under Section 115 CPC was discharged and the challenge to the Subordinate Judge's order failed.
- There will be no order as to costs in this Rule proceeding itself.
- The trial court's order imposing payment of costs by the applicant-opposite party as a condition precedent to setting aside the decree and restoring the suit (i.e., the costs order made by the trial court in favour of the petitioner and against the applicant) is to be maintained.
The opinion does not discuss broader legal consequences beyond the parties before the court; the decision affirms the trial court's factual assessment and declines to create or announce a new precedent that would negate the mandatory service requirement of Order V, Rule 1 CPC in pauper suits.
P.N Mookerjee, J.:— This Rule arises out of an application for setting aside, what, in truth and substance, was an ex parte decree, passed against the applicant who is the contesting opposite party before us. The application was made under the usual provision of O. IX, R. 13 of the CPC. The applicant was defendant No. 3 in the suit for partition, in which the aforesaid ex parte decree was passed. The applicant's case was that no summons of the suit had been served upon him and that he came to know of the above ex parte decree within the relevant period, namely, thirty days of the date of presentation of the aforesaid application for timely presentation of the said application for purpose of limitation.
2. The application was contested by the present petitioner who was the contesting defendant No. 1 in the original suit, but he had as much interest in the decree for partition as such defendant as the plaintiff herself and, accordingly, he was certainly entitled to oppose the above applicant's aforesaid application.
3. The case of the present petitioner was that, in the circumstances, stated in his petition of objection, the applicant, who is the contesting opposite party before us, as stated hereinbefore, must be held to have had knowledge of the suit and knowledge of the decree also at all material times and, certainly, long before thirty days of the filing of the aforesaid application under O. IX, R. 13 of the CPC. In support of their respective cases, the parties examined themselves and also some witnesses.
4. The learned Subordinate Judge, on an examination of the oral evidence before him, came to the conclusion that, in the circumstances of this case, the application under O. IX, R. 13 should be allowed on terms as to payment of costs by the applicant as and by way of condition precedent and the ex parte decree should be set aside and the suit in question should be re-heard after restoration, even though the application under O. IX, R. 13 of the CPC had been filed a long time, viz., roughly, a period of seven years, after passing of the aforesaid ex parte decree.
5. The circumstances are rather unusual, and prima facie against the applicant-opposite party and this has not been overlooked by the learned Subordinate Judge, but the difficulty of the present petitioner is that this is a Rule proceeding under Section 115 of the CPC and if the learned Subordinate Judge has accepted the evidence of the opposite party, however wrong that acceptance may be, depending, as it does, on the assessment of the oral evidence before the court and being or involving simply a question of believing or disbelieving a particular witness, it is not permissible for this court to interfere under Section 115 of the CPC. Mr. Dutt who appeared for the petitioner, realised this difficulty, but he attempted to get rid of the same by raising an interesting question, namely, that, in the present case, no summons of the suit, of the non-service whereof complaint is made by the applicant-opposite party, need have been served in law. The submission is made in the articular facts and circumstances of this case which are as follows:
6. The suit in question, namely, the partition suit, was originally brought in forma pauperis, that is, by filing an application for instituting and continuing the suit as a pauper. That application was registered as Misc. Case No. 19/1947. The application was eventually allowed and the proceeding, in accordance with and as required by law, was registered as T.S 69/1947. In the original pauper proceeding namely, Misc. Case No. 19/1947, the present contesting opposite party who was defendant No. 3 in the relative partition suit and opposite party No. 3 in the said pauper application, had entered appearance and consented to the plaintiffs being allowed to sue as a pauper, the plaintiff being, as it appears from the evidence, his wife after her remarriage with him, on the death of her previous husband. Mr. Dutt contends that, in these circumstances, when, under O. XXXIII R. 8, a petition of pauperism, on being granted, is itself to be deemed as the plaint in the suit, it must be taken that the plaint was presented when the pauper application was filed in court and the suit also must be deemed to have been instituted on that date and the defendant's appearance in the pauper application, namely, Misc. Case No. 19/1947, must be deemed to have been his appearance in the suit itself, thus rendering it unnecessary in law to serve any summons of the suit upon him, the notice served upon him in connection with the application for pauperism (Misc. Case No. 19/1947) being, in the circumstances, the substitute — the legal and valid substitute — for the summons of the suit. The point raised is somewhat intriguing and interesting. But, having given the matter our best consideration, we are unable to accept it. It is true that, under O. XXXIII, R. 8, the pauper application, on being granted, is to be deemed to be the plaint of the pauper suit, which is ultimately registered upon and cause of the granting of the said pauper application. It may be true also that, for purposes of limitation, — & may be for certain other purposes too, — the suit must be deemed to have been tiled, when the original pauper application was presented in court. The suit, however, actually came into existence, when the pauper application as the plaint in the suit was registered, and, in the facts and circumstances of this particular case, when, roughly speaking, it was given the number T.S 69/1947.
7. Under O. V, R. 1, service of summons on the defendant is obligatory in every suit, unless the case comes within the proviso which contemplates the case of a defendant who has entered appearance at the presentation of the plaint and who has admitted the plaintiffs claim. The present case, in our opinion, cannot be brought within the said proviso and, if that be the true position in law, summons of the suit (T.S 69/1947) had to be served upon all the defendants including the applicant-opposite party who was defendant No. 3 therein. That actually was attempted to be done in this case also, as we find on the record that, after registration of the suit as aforesaid, the plaintiff was directed to put in process fees and copies of the plaint and the court directed service of summons upon the defendants and, it was only after the peon's return had been accepted by the learned Subordinate Judge that there was actually service of summons upon the present contesting opposite party, defendant No. 3 that the suit in question proceeded. What we have said above also accords quite fully with the practice in this matter which prevails in the civil courts, and, in our opinion, that practice is salutary and fully in accordance with law and it should not be interfered with.
8. Mr. Dutt also drew our attention to the decision of the Madras High Court, reported in Sonnamal v. Coimbatore Maha Jana Bank Ltd., AIR 1934 Mad 690, where it was held by the learned Judges of the Madras High Court that the Vokalatnama filed in connection with the pauper proceeding or the Misc. Case, may, in law, be the Vokalatnama for the particular party in the suit itself when the same is registered. The question there appears to have arisen, presumably on the office report, whether such Vokalatnama should be accepted as sufficient for purposes of the suit also. It was really a concession or relaxation in law in favour of a particular party and it certainly cannot be used to his prejudice to nullify, for all practical purposes, so has as pauper suits are concerned, the express statutory provision in O. V, R. 1, which exempts the plaintiff from serving summons upon the defendant only when that defendant had appeared at the presentation of the plaint and has admitted the claim of the plaintiff.
9. Before us Mr. Dutt, of course, argued and argued very strenuously, that in the facts of this case, not only was there appearance of this particular defendant in the suit itself, in the light of the Madras decision, referred to hereinbefore, but there was and admission on his part of the plaintiffs claim but we are unable to accept his said argument. It is to be remembered here that the claim of the plaintiff, which was originally made, was substantially changed by amendment at a later stage and, as, in law, the amendment would relate back to the date of filing of the suit, this amendment, by which the plaintiffs original case or claim was materially changed and which original claim alone may, at the most, be said to have been admitted or accepted by the present contacting opposite party as defendant No. 3 in the above context or circumstances, — would relate back to the date of presentation of the plaint and would form part of the said original plaint from the date of its presentation. In these circumstances it cannot be said that, materially speaking, there was any admission by this defendant of the suit claim of the plaintiff and accordingly, even if the Madras view be extended and applied at its widest to the present case, leading to the position that the defendant must be taken to have entered appearance in the suit also by the thing of his Vokalatnama in the pauper application or the Misc. Case, referred to above, the proviso to O. V R. 1 would not be satisfied and the plaintiff cannot claim exemption from service of summons upon the defendant. We feel, further, that the deeming provisions of O. XXXIII, Rule 8 should not be construed or applied in such a manner as to whittle down the mandatory provision of O. V R. 1 and to render it irrelevant and inapplicable to pauper suits for all practical purposes. The interesting point raised by Mr. Dutt, as noted and discussed above, must, therefore, be decided against him and, in that view, no other point would remain which would entitle us, in the circumstances of this case, to interfere with the order of the learned Subordinate Judge under Section 115 of the CPC.
10. This Rule, accordingly, fails and it is discharged.
11. In the circumstances, there will be no order for costs in this Rule, but the order for costs, as made by the trial Court, in favour of the present petitioner and against the applicant-opposite party as and by way of condition precedent for the setting aside of the decree in question and restoration and rehearing of the suit will be maintained.
Niyogi, J.:— I agree.
ED/R.G.D
12. Rule discharged.
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