PRASENJIT MANDAL,J. - (1.) THIS application is at the instance of the defendant No.1 and is directed against the judgment and order dated April 27, 2012 passed by the learned Civil Judge (Senior Division), Asansol in Misc. Appeal No.9 of 2011 thereby affirming the impugned judgment and order No.33 dated January 27, 2011 passed by the learned Civil Judge (Junior Division), 1 st Court at Asansol in Misc. Case No.73 of 2000. The short fact necessary for the disposal of this application is that the plaintiff/opposite party herein instituted a suit against the petitioner herein being Title Suit No.89 of 1989 before the learned Munsif, 1 st Court, Asansol praying for a decree of declaration, permanent injunction and other reliefs. That suit was decreed ex parte by the order dated April 21, 1994. The defendant was never summoned in the said suit and the learned Trial Judge did not consider, at all, whether summons was duly served upon the defendant or not. But the learned Trial Judge proceeded to adjudicate the said suit and accordingly, the ex parte decree was passed. The petitioner filed a Misc. Case under Order 9 Rule 13 of the CPC being the Misc. Case No.73 of 2000 and the plaintiff/opposite party is contesting the said Misc. Case by filing a written objection denying the allegations raised in the said Misc. Case. Both the parties have adduced evidence in the said Misc. Case and upon due consideration of the evidence, the learned Trial Judge dismissed the Misc. Case on contests with costs of Rs.2,000/- to the plaintiff. Being aggrieved, the defendant/petitioner preferred a Misc. Appeal being Misc. Appeal No.9 of 2011 and that Misc. Case was also dismissed on contests. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Having heard the learned Advocates of both the sides and on perusal of the materials-on-record, I find that notice was duly served upon the petitioner and the staff of the petitioner received the said notice. Admittedly, the defendant No.1 was a partnership firm and Dr. Pravita Ranjan Mukherjee, the defendant No.2, was a partner of the firm of the defendant No.1 and notice was served upon the wife of Dr. Pravita Ranjan Mukherjee. It may be noted herein that the defendant No.2 did not file the Misc. Case for setting aside the ex parte decree.
(2.) AS per materials-on-record, Dr. Pravita Ranjan Mukherjee filed another Misc. Case being Misc. Case No.25 of 1995 for setting aside the ex parte decree and in that Misc. Case, one lawyer, namely, Sri Piyus Kanti Das was the conducting lawyer on behalf of Dr. Pravita Ranjan Mukherjee. Ultimately, Dr. Pravita Ranjan Mukherjee did not proceed with the said Misc. Case and as a result, the said Misc. Case No.25 of 1995 was dismissed for default. The Lower Appellate Court analyzed the evidence on record adduced by the parties and it has been observed that the order sheet of the concerned Title Suit reveals that the defendant No.1 (petitioner herein) was contesting the said suit. In the meantime, the partnership firm of the defendant No.1 had been changed into a private company and Dr. Pravita Ranjan Mukherjee is a Director of the Asansol Medical Centre Private Limited. All the properties of the partnership firm, assets and liabilities also had been converted in the name of the company. The P.W.1 has admitted that all the partners of the firm already died. Accordingly, the Lower Appellate Court has observed that legal entity of the partnership firm is no more inexistence and so, a non-existent legal entity does not possess any right to sue. As per materials-on-record, Dr. Pravita Ranjan Mukherjee joined the said company on December 4, 1994 when it came into existence. The suit was decreed on April 21, 1994 and thereafter, the Execution Case was filed. The wife of Dr. Mukherjee was one of the partners of the defendant No.1 and as per order sheet, summons was duly served upon the defendants. During argument, Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the petitioner, has contended that the principles of ex parte hearing of a suit have not been followed in the instant case. In support of his contention, he has referred to the decisions of S. Rajagopalaswami Naidu v. The Bank of Karaikudi, Ltd. reported in AIR 1971 Supreme Court 884 and Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd. & anr. reported in (2005) 13 Supreme Court Cases 95 and thus, he has submitted that a litigant should not be denied hearing unless something akin to gross negligence or misconduct in contesting the proceedings is made out. With due respect to Mr. Banerjee, I am of the view that both the Courts below have concurrently held that the summons was duly served upon the defendants and they were actually contesting the said suit but ultimately, they did not contest. Delay in filing the Misc. Case under Order 9 Rule 13 is more than six years. On the other hand, Mr. Probal Kr. Mukherjee, learned Advocate appearing for the opposite party, has referred to the decision of S. Rajagopalaswami Naidu v. The Bank of Karaikudi, Ltd. reported in AIR 1971 Supreme Court 884 and thus, he has submitted that the husband and the wife could not be treated as one entity for mortgages � the husband and wife owning separate properties and mortgaging their properties separately and jointly � suit to enforce joint mortgage does not bar a suit to enforce mortgage executed by one spouse alone � Section 67-A not attracted as 'mortgagor ' is not the same. Mr. Mukherjee has also referred to the decision of Basant Singh & anr. v. Roman Catholic Mission reported in (2002) 7 Supreme Court Cases 531 and thus, he has submitted that where of the two defendant-appellants, one appeared as a witness, but only made simple statement denying receipt of summons and the other did not appear at all, held on facts, High Court rightly dismissed revision petition of appellants and rightly confirmed the ex parte decree against them. This is, I hold, is fully applicable in the instant case. Mr . Mukherjee has also referred to the decision of Sunil Poddar & ors. v. Union Bank of India reported in (2008) 2 Supreme Court Cases 326 and thus, he has submitted that non-service of summons is not a ground for setting aside the ex parte decree when notice of the date of hearing and sufficient time to appear and answer the claim were available to the defendants. In the instant case, as per materials-on-record, the defendants were contesting the said suit and so, when the decree was passed ex parte decree, according to this decision, they cannot take the plea that they were not summoned.
(3.) IN view of the above facts and circumstances, I am of the opinion that notice was duly served and the defendants were proceeding with the suit, but, they did not contest the suit later on. The concurrent findings of the Courts below are based on evidence on record and the same cannot be stated to be perverse at all. Under the circumstances, this application, in my view, is totally devoid of merits. There is no illegality or materials irregularity in the impugned order. Accordingly, this application is dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.;