ALL INDIA GENERAL TRANSPORT CORPORATION Vs. RAGHUNATH SAHAY

JUDGEMENT

(1.) This application is directed against an order passed by Sri S. C. Chakravarty, District Judge, Purnea in Miscellaneous Appeal No. 78 of 1966 confirming an order dated the 25th June, 1966 passed by the Munsif, Katihar in Miscellaneous Case No. 108 of 1965 refusing to set aside the decree obtained by opposite party No. 1.

(2.) The plaintiff-opposite party No. 1 filed a Money Suit No. 310 of 1964 for realisation of Rs. 3404.68 Paise for nondelivery of a consignment booked from Bombay to Katihar. The petitioner was defendant No. 1 and opposite party No. 2 was defendant No. 2 in the Court below. The suit was decreed ex parte against the petitioner which is a Company having its Head Office at 134/4 Mahatma Gandhi Road, Calcutta carrying on transport business all over India. The ex parte decree was passed on the 19th May 1965. The petitioner filed an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the said decree. The case of the petitioner is that no summons has been duly served and the petitioner got the knowledge of the suit only on the 20th July, 1965 when the Director of the petitioner gave telephonic information. Thereupon, the petitioner instructed its Advocate at Patna to do necessary pairvi in the suit, and thereafter an application for setting aside the ex parte decree was filed on the 16th August, 1965. Both the courts below have concurrently found that the summons had been duly served in accordance with the provisions of Order 29, Rule 2(b) of the Code of Civil Procedure, and the application having not been filed within thirty days from the 19th May, 1965, it was barred by time. Defendant No. 2 has not appeared at any stage of the suit or the application. Plaintiff, opposite party No. 1 has not appeared in this Court to contest the application of the petitioner.

(3.) The suit was instituted on the 3rd August, 1964. The Order dated the 21st September, 1964 shows that summons was served on defendant No. 2, but it was not issued against defendant No. 1 as conveyance charge was not filed. Later on, the summons on defendant No. 1 was issued, but it returned unserved. The plain- tiff-opposite party again filed requisites and fresh summons was issued, and as noted in the order dated 22nd March, 1965 the summons was duly served. By the same order the learned Munsif directed the plaintiff to file card. Registered post card was served on defendant No. 2, but it returned unserved on defendant No. 1, the petitioner. The witnesses examined on behalf of the petitioner have denied the service of notice. Witness No. 1, on behalf of the plaintiff, is the bailiff of the Small Cause Court, Calcutta. He stated that he served the summons on the petitioner at 134/4 Mahatma Gandhi Road, Calcutta. At first he met an employee of the petitioner and requested him to take the summons, and on his refusal he affixed the summons in the office of the petitioner, and wrote out the service report (Exhibit A). In this situation, the courts below have come to the conclusion that the summons on the petitioner, which is a corporation, had been duly served. On the question of limitation the courts below disbelieved the petitioner's case that it got knowledge on the 20th July, 1965 as stated in the petition. In view of the findings on both the points, the Courts below have dismissed the application of the petitioner. The petitioner has, therefore, filed this petition in this Court under Section 115 of the Code of Civil Procedure,