- (1.) This appeal has been preferred against the Judgment dated 30.06.2003, passed by learned Sub Judge No. - I, Palamau at Daltonganj in connection with Partition Suit No. 103/2002 and Decree signed on 18.07.2003, whereby the learned Sub Judge has decreed the suit against the present defendants/appellants.
(2.) It is submitted that the defendants/ appellants had preferred Partition Appeal No. 54/2003 before the learned District Judge, Palamau at Daltonganj but considering the pecuniary jurisdiction, learned District Judge has returned the Memo of Appeal with liberty to present the same before the appropriate Court and hence, the appellants have preferred this appeal before this Court.
(3.) It is submitted that no notice was validly served upon the defendants/appellants. The address appearing on the notice sent through the registered post was incorrect and the Court has relied on the endorsement "refused to take" made by the postal peon and fixed the case ex-parte. The learned counsel has also drawn my attention towards the order dated 03.10.2002, passed in Partition Suit No. 103/2002 by which the suit presented by the plaintiffs/ respondents was admitted. The learned Court has not given direction to the plaintiffs to file requisites and process fee after admitting the suit but further order sheet dated 25.11.2002 and 24.12.2002 indicates that the notice issued against the defendants/ appellants was sent through registered post and it was returned with endorsement "refused to take". Thereafter on 26.02.2003, on the prayer made by counsel appearing for the plaintiffs, the learned Sub Judge fixed the suit for ex-parte hearing. It is further pointed out that the provisions contained under Order 5 Rules 16, 17, 18 and 19, have not been complied with and there appear gross error on record too. It is unknown to the lower court record as to how the notices were sent through registered post against the defendants/ appellants. The impugned Judgment is highly erroneous and, therefore, the same is liable to be set aside and the defendants/ appellants should be given opportunity to contest the suit by filing written statement.;