Baidyanath Gour Vs the State of Jharkhand through Deputy Commissioner

¶1

2025:JHHC:17475

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Revision No. 35 of 2023

¶3

Gopal Pradhan, aged about 52 years, Son of Late Baidyanath Gour, resident of H.No. 105, Gour Basti, Mango, Near Gandhi Kutir, P.O. & P.S. – Mango, East Singhbhum, Jharkhand.

¶4

Jayanti Barik, aged about 55 years, wife of Niranjan Barik, resident of Village- Pandar Sholi, P.O. & P.S. – Bhalki Potka, East Singhbhum, Jharkhand.

¶5

Kavita Devi, aged about 36 years, wife of Arjun Pradhan, resident of Banta Nagar, C-Zone, P.O. & P.S. – Adityapur, SaraikelaKharsawan, Jharkhand.

¶6

Banalta Mahakur, Wife of Nirmal Mahakur, resident of H.No. 13, Strt/Mohalla-Mukundasai, P.O. – Rasunchopa, P.S. – Potka, Quali, Rasunchopa, East Singhbhum, Jharkhand.

¶7

Lalita Devi, Wife of Somnath Pradhan, resident of Rengogora, Panchayat – Burudih, P.O. & P.S. – Kharsawan, Burudih, Saraikela-Kharsawan, Jharkhand.

¶8

….. Petitioners / Opp. Parties / Substituted Plaintiffs

¶9

Versus

¶10

The State of Jharkhand. 2. Executive Engineer, Subarnrekha Canal Division, Sankosai, Mango, Jamshedpur, P.O. – Mango, P.S.-Oilidih, Jamshedpur, District – East Singhbhum, Jharkhand.

¶11

….. Respondents / Applicants /

¶12

Principal Defendants

¶13

Padmawati Gour, wife of Late Khoka Gour, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶14

Deepak Gour, son of Late Khoka Gour, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶15

Pradeep Gour, son of Late Khoka Gour, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶16

Surya Devi, wife of Late Loknath Gour, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶17

Goutam Gour, son of Late Loknath Gour, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶18

Mukul Gour, son of Late Loknath Gour, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶19

1

¶20

2025:JHHC:17475

¶21

Suman Kumar Gour, son of Late Loknath Gour, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶22

10.Sunit Mahakud, wife of Purana Chand Mahakud, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶23

Aruni Gope, son of Late Pata Gourin, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶24

Basu Gope, son of Late Pata Gourin, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶25

Ashutosh Gope, son of Late Pata Gourin, resident of Post Office Road, Mango, P.O. & P.S. – Mango, Jamshedpur, District – East Singhbhum, Jharkhand.

¶26

Sarla Devi, wife of Dambar Dhar Gope, resident of Village – Pokhari, P.O. – Bhilai Pahari, P.S. – M.G.M., District – East Singhbhum, Jharkhand.

¶27

….. Proforma Opp. Parties / Proforma Opp. Parties / Proforma Defendants

¶28

---------

¶29

CORAM: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

¶30

-------- For the Petitioner : Mr. Shresth Gautam, Advocate. For the State : Mr. Sanjay Kumar Tiwari, S.C.-I. For the Opp. Party Nos. 6 to 10 : Mr. Ranish Kumar, Advocate. --------- Order No. 11/Dated: 2^nd July, 2025

¶31

1. The instant civil revision application is directed against the order dated 12.10.2023 passed by learned Principal District Judge, East Singhbhum, Jamshedpur in Civil Misc. Appeal No. 14 of 2022, whereby and whereunder the appeal preferred by the respondent nos. 1 & 2 under Order XLIII Rule 1(d) of the Code of Civil Procedure against the order dated 22.09.2022 passed by learned Civil Judge, Senior Division-I, Jamshedpur in Civil Misc. Case No. 02 of 2015, which was filed under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure for setting aside the ex parte decree dated 30.07.2012 passed in Title Suit No. 88 of 2004, was allowed by setting

¶32

2

¶33

2025:JHHC:17475

¶34

aside the ex-parte decree passed in Title Suit No. 88 of 2004 and restored the suit to its original number for hearing on merits,.

¶35

2. Learned counsel for the petitioners assailing the impugned order has mainly argued that the learned appellate court in an appeal filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, while setting aside the order passed by the learned Civil Judge, Senior Division-I, Jamshedpur, on application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, has ignored the conditions laid down under Order IX Rule 13 of Code of Civil Procedure for setting aside the ex-parte decree and acted beyond jurisdiction while allowing the Misc. Appeal only on the ground of securing trial on merits for the sake of principles of natural justice. Learned appellate court has palpably failed to consider that there was effective service of notices / summons in the Title Suit No. 88 of 2004 upon respondent no. 2 namely, Executive Engineer, Subarnrekha Canal Division, Sankosai, Mango, Jamshedpur.

¶36

3. It is further submitted that the suit was contested by respondent no. 1, The State of Jharkhand, but no written statement was filed, although relief was sought specifically against the respondent no. 2, therefore, ex-parte decree has rightly been passed and the Misc. Petition filed by the defendant / respondent no.2 was also dismissed on merits after taking evidence by the learned trial court. Therefore, the learned appellate court had no occasion and valid reasons to quash the order passed by the learned Civil Judge, Senior Division-I, Jamshedpur.

¶37

4. It is further submitted that notices were served upon the appellants / defendants properly and thereafter the ex-parte decree was passed. Therefore, impugned order passed by learned appellate court, is fit to be set aside, allowing this revision.

¶38

3

¶39

2025:JHHC:17475

¶40

5. Learned counsel for the petitioners has placed reliance upon the reported judgment in the case of Parimal Vs. Veena @ Bharti, (2011) 3 SCC 545 , wherein it has been held that second proviso appended to Order IX Rule 13 of Code of Civil Procedure is mandatory in nature as such, it is not permissible for the court to allow the application in utter disregard of terms and conditions incorporated therein.

¶41

6. It was observed that for determining the sufficient cause test to be applied as to whether defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. In this contest, “sufficient cause” means that the party had not acted in a negligent manner or there was a want of bonafide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”,

¶42

7. Learned counsel has further relied upon the reported judgment in the case of Basant Singh & Another Vs. Roman Catholic Mission (2002) 7 SCC 531 in connection with effect of substituted service of notice under Order V Rule 20 of Code of Civil Procedure.

¶43

8. On the other hand, learned counsel for the opposite party nos. 1 & 2 has submitted that in Title Suit No. 88 of 2004, defendant no. 2 / opposite party no. 2 was arrayed as Executive Engineer, Subarnrekha Canal Division, Sankosai, Mango, Jamshedpur, East Singhbhum, whereas the office of defendant no. 2 was situated in Gangudih not Sankosai at East Singhbhum Jamshedpur.

¶44

9. It is further submitted that after passing the ex-parte judgment and decree in Title Suit No. 88 of 2004, Execution Case No. 40 of 2013 was filed by the plaintiffs and notice was issued in the said execution case again on the wrong address of Executive Engineer,

¶45

4

¶46

2025:JHHC:17475

¶47

Subarnrekha Canal Division instead of Gangodih as done in Title Suit No. 88 of 2004.

¶48

10. It is further submitted that the Subarnrekha Project is a multipurpose Project and the suit property belongs to the defendant no. 2, whose office was running at Gangodih. The notice issued in the execution proceeding was received at Head Office Sankosai, which was forwarded to the defendant no. 2 at Gangodih Office, then it was revealed that ex-parte decree has been obtained mentioning wrong address of the defendant no. 2 and execution case was also filed with wrong address of defendant no. 2. Thereafter, Civil Misc. Case No. 02 of 2015 was filed under Order IX Rule 13 read with Section 151 of Code of Civil Procedure for setting aside the ex-parte decree, which was improperly dismissed by the concerned trial court only on the ground of limitation and service of summons through substituted service, therefore, Civil Misc. Appeal No. 14 of 2022 was filed, which was rightly allowed by the learned appellate court. There was no intention of the respondents to avoid appearance in Title Suit and contest the same, rather he was prevented from sufficient cause as no knowledge of the pendency of the said suit ever came except forwarding notice received in execution case by the Head Office of respondent no. 2 wrongly mentioned in the suit itself. Therefore, there was sufficient cause shown by the respondent / defendant no. 2 for his non-appearance and to contest the suit and there was no service of notice, as such, personally upon the defendant no. 2. Therefore, the order passed by the learned appellate court is absolutely justified under law and suffers from no illegality or infirmity calling for any interference and this revision is fit to be dismissed.

¶49

11. I have considered the rival contentions of the parties.

¶50

12. For better appreciation of the case, the relevant provision requires to be extracted hereunder:-

¶51

5

¶52

2025:JHHC:17475

¶53

Order IX Rule 13 of CPC

¶54

13. Setting aside decree ex parte against defendant. - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

¶55

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

¶56

Explanation-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

¶57

13. In the instant case, it has to be seen that whether the defendant no. 2 was prevented by any sufficient cause from appearing in the Title Suit No. 88 of 2004. It is crystal clear that for the first time, the defendant no. 2 came to know about the ex-parte decree passed in Title Suit No. 88 of 2004 through forwarding of notice in Execution Case No. 40/2013 by the Head Office situated at Subarnrekha Canal Division, Sankosai. Therefore, non-appearance of defendant no. 2 does not appear to be malafide and intentional. At this juncture, it is relevant to quote para-16 of the judgment relied upon by learned counsel for the revisionist / petitioner himself in the case of Parimal V. Veena @ Bharti (Supra) .

¶58

6

¶59

2025:JHHC:17475

¶60

16. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.

¶61

14. The factual aspect in the instant case, as discussed above, which prevented the respondent / defendant no. 2 in appearing the Title Suit No. 88 of 2004 and contest the same appears to be reasonable, plausible and sufficient cause due to no knowledge of the suit prior to the notice issued in Execution Case and forwarded to office of defendant no. 2. There is no material on record to show that there was intentional / deliberate avoidance of appearance in the title suit in order to frustrate the course of justice or with an ulterior motive.

¶62

15. It is settled law that procedural law should be interpreted liberally to further the course of justice as a lubricant and not to put a resistance in the course of justice. A pedantic or strict interpretation of procedural law leads to injustice, which should be avoided.

¶63

16. In view of above discussions and reasons, I do not find any reason to interfere with the impugned order. Accordingly, the instant civil revision is dismissed.

¶64

17. Pending I.A. stands disposed of.

¶65

(Pradeep Kumar Srivastava, J.)

¶66

Sunil/

¶67

7

Baidyanath Gour v. the State of Jharkhand through Deputy Commissioner

Case brief

What is this about?

What did the court decide?

Baidyanath Gour v. the State of Jharkhand through Deputy Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Ashok Kumar Tiwari And Anr. Vs Director S.E., Human Resources Development Department

Archana Devi Vs Shambhu Kumar Mahto

Payal Kumari Vs Abhishek Kumar Shaw

Mamta Kumari Vs Vikash Kumar

Dukhit Mahto Vs Harendra Prasad And Ors.

Priya Kumari Vs Manoj Keshri