SANTOSH KUMAR CHAKRABORTY Vs. M.A. MOTALEB HOSSAIN

JUDGEMENT

(1.) The questions that fall for determination in this appeal are whether the provisions as to enquiry, as contemplated in rule 19 of Order V of the Civil Procedure Code, are mandatory in all cases, such as, where there is a declaration by the serving officer that summons was duly served by him under rule 17 of the said Order, and whether the learned Judges of the High Court Division have correctly held that the trial Court made a declaration, under Rule. 19, that summons was duly served in this case.

(2.) This appeal is directed against the High Court Division's order dated 4 March 1982 in Civil Division No. 495 of 1981 reversing an order of the Subordinate Judge by which an ex parte decree dated 28 September 1974 was set aside under Order IX Rule 13 of the Civil Procedure Code. This ex parte decree was passed in Title Suit No 8 of 1974 of the 1st Court of Subordinate Judge. Dhaka, filed by the plaintiff-respondent against the defendants-appellants for specific performance of contract for sale of a premise in Dhaka Municipal area. The suit was filed on 7 January 1974 and was decreed ex parte on 28 September 1974 when the defendants, though served with notice as the record shows, did not appear to contest. The defendants challenged the decree by filing an application on 24 October 1975 alleging that no summons was served upon them but the summons was suppressed fraudulently. The plaintiff contested the application stating that the summons was duly served by the process server by hanging it on their door when the defendants refused to receive the summons by signing acknowledgment and further that the application was barred by limitation of about thirteen months as the defendants knew of the suit as early as on 10 May 1974 in connection with a Mutation Case filed by them in which the plaintiff filed an objection stating that be had filed the suit for specific performance of contract in respect of the same property. The trial Court on consideration of evidence of 3 witnesses for the defendants and 10 witnesses for the plaintiff set aside the ex parte decree on a finding that "the defendants were sufficiently prevented from appearing in the Court when the suit was taken up for hearing" and that there was no declaration from the court that summons was duly served. On a revisional application the learned Judges of the High Court Division interfered with this decision of the trial Court holding that the trial Court on erroneous view of law and fact arrived at the finding that there was no declaration from the court that summons was duly served, whereas, in fact, there was such a declaration.

(3.) Mr. Rafiq-ul-Huq, learned Advocate for the appellants contends that the provisions of an enquiry by examining the process server in Court are mandatory under rule 19 of Order V of the Civil Procedure Code, but the learned Judges of the High Court Division erroneously held that these provisions are discretionary. On this point the learned Advocate is not found to be correct. The learned Judges have pointed out, and we find correctly, that two classes of cases are contemplated in rule 19, that in one class of cases, examination of the process server is mandatory, and in another class of cases it is discretionary. Where the serving officer has returned the summons and has also made a declaration to the effect that he served the summons by affixation under rule 17, then, examination of the process server as a witness in Court is not mandatory, particularly when the ''proviso" to this rule shows that a declaration of the serving officer "shall be received as evidence of the facts as to the service or admitted service of the summons". In this case, admittedly the serving officer (O P.W. 6) made a declaration that he went to the defendants' house with the summons but the latter refused to receive the summons whereupon he served it by hanging it on the defendants' door in, presence of witness. But where there is no such declaration of the serving officer, examination of the serving officer as a witness is mandatory. For better appreciation of this provision, rule 19 is quoted below: