IN THE SUPREME COURT OF BANDLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

 CIVIL REVISION NO. 396 of 2021.

                                             Md. Insan Ali and others. 

       ...Petitioners.

           -Versus-

Md. Kudrat E Khoda @ Abu Sayed and others                }          ....Opposite parties.

 Mr. Md. Alamgir Mostafizur Rahman, Adv.

… for the petitioners

 Mr. Sajjad Ali Choudhury and

 Mr. Md. Fazle Rabbi, Advocate

… for the opposite parties.

Heard on: 24.08.2022, 31.08.2022,

01.09.2022 and 15.11.2022.                                        Judgment on: 20.11.2022.

   Present:

Mr. Justice Md. Badruzzaman.

 This Rule was issued calling upon the opposite parties to show cause as to why judgment and order dated 08.12.2020 passed by learned Additional District Judge, 3rd Court, Rajshahi in Miscellaneous Appeal No. 27 of 2018 disallowing the appeal and thereby affirming judgment  and  order  dated  22.03.2018  passed  by  learned  Joint District Judge, Additional Court, Rajshahi in Miscellaneous Case No. 117 of 2008 dismissing the case filed under Order IX rule 13 read with section 151 of the Code of Civil Procedure should not be set aside.

Facts, relevant for the purpose of disposal of this Rule, are that the petitioners herein (defendant Nos. 32, 33 and 16 respectively) as petitioners on 16.9.2008 filed Miscellaneous Case No. 117 of 2008 under Order IX rule 13 read with section 151 of the Code of Civil

Procedure praying for setting aside ex parte judgment and decree dated 18.7.1999 (decree signed on 22.7.1999) passed in Other Class Suit No. 44 of 1996 by 1st Court of  Sub-ordinate Judge, Rajshahi stating, inter alia, that opposite party Nos. 1-14 filed Other Class Suit No. 44 of 1996 before 1st Court of Sub-ordinate Judge, Rajshahi for partition of 8.65 acre land which was dismissed vide judgment and decree  dated  18.7.1999  (decree  signed  on  22.7.1999)  on  contest against defendant Nos. 1 and ex parte against the petitioners and others. The plaintiffs then preferred an appeal and upon hearing, the suit was decreed  vide judgment  dated  21.2.2001.  The petitioners have learnt about the  ex parte judgment and decree on 7.8.2008 from somebody and then filed an application by engaging learned Advocate on 18.8.2008 for perusal of the record  of the suit who examined  the  record  on  19.8.2008  and  found  that  the  process- server,  without  going  to  the  respective  houses  of  defendants, showed  service  of  summons  by  hanging  and  by  suppressing summons of the original suit, the plaintiffs fraudulently obtained the ex parte decree.

Plaintiff- opposite parties contested the application by filing written objection stating that the case is barred by limitation; that the summons was duly served upon the defendants by the process- server  by  hanging  it  on  their  respective  house  doors  when  they refused to receive the summons by signing acknowledgement and that they were aware of the suit and ex parte decree and accordingly, the ex parte decree was rightly passed and the defendants are not entitled to any relief.  

Both parties adduced evidence to prove their respective case. The trial Court, upon consideration of the evidence and materials on record dismissed the miscellaneous case vide judgment and order dated 22.03.2018 holding that the summons was duly served and the application  was  barred  by  limitation.  Being  aggrieved  by  said judgment and order, the defendants preferred Miscellaneous Appeal No. 27 of 2018 before the learned District Judge, Rajshahi which, on transfer, was heard by learned Additional District Judge, 3rd Court, Rajshahi, who upon hearing both the parties vide judgment dated 08.12.2020  disallowed  the  appeal  by  affirming  the  judgment  and order passed by the trial Court.

Being aggrieved by said judgment and order dated 08.12.2020 defendant Nos. 16, 32 and 33 have preferred this application under section 115(1) of the Code of the Civil Procedure and obtained the instant Rule and order of stay operation of the impugned judgment and order dated 08.12.2020.

The  plaintiff-opposite  parties  have  entered  appearance  by filing Vokalatnama to contest the Rule.

Md. Alamgir Mostafizur Rahman, learned Advocate appearing for the petitioners submitted that the trial Court committed an error of law by holding that the summons was duly served merely on the basis of service return which was not verified by an affidavit of the serving  officer  under  rule  19  of  Order  V  of  the  Code  of  Civil Procedure (the Code); that the process server was not examined on oath and service was not proved; that the process server did not make an affidavit as per Form 11 under APPENDIX-B of the Code but he only submitted a report showing service of summons by hanging

under rule 17 of Order V of the Code which is not sufficient service as per  rule  19  of  Order  V  of  the  Code;  that  the  trial  Court  also committed illegality in holding that the summons was served upon the defendants by registered post though, as per rule 19B of Order 5 of the Code, such serving process is simultaneous one which cannot be taken as due service of summons in the absence of service by the process-server;  that  the  trial  Court  upon  misconstruction  and misinterpretation of the service return wrongly concluded that the same was a declaration by the process-server; that the trial Court wrongly  held  that  the  case  was  barred  by  limitation  without considering  specific  case  of  the  defendants  that  the  plaintiffs  by fraudulent means obtained the ex parte decree and that they filed the case within 30 days from the date of their knowledge; that in the suit, the trial Court did not make any declaration as to due service of summons upon the defendants as per mandatory provision under rule 19 of Order V of the Code, and that the Court of appeal, as the last Court of facts, without considering factual and legal aspect of the case illegally upheld the order of the trial Court by the impugned judgment and thus interference is called for by this Court.

In opposing the submissions of the learned Advocate for the petitioners,  Mr.  Md.  Sajjad  Ali  Chowdhury,  learned  Advocate appearing  for  the  plaintiff-opposite  parties  submitted  that  the miscellaneous  case  was  barred  by  limitation  and  the  defendants could not prove the date of knowledge by sufficient evidence; that the Court of appeal concurrently found that the summons was duly served through process server and rightly dismissed appeal and as such, interference is not called for by this Court.

I  have  heard  the  submissions  of  the  learned  Advocates, scrutinized and gone through the pleadings of the parties, evidence, both oral and documentary, and judgments of the Courts below as well as relevant provisions of law to come to a proper decision.

Rule 16 of Order V of the Code of Civil Procedure provides the procedure of personal service of summons in usual course and rule 18 provides the procedure of endorsement of time and manner of service  under  rule  16.  Rule  17  of  Order  V  of  the  Code  provides procedure when defendant refuses to accept service, or cannot be found while rule 19 provides provisions of examination of the serving officer when the summons were served under rule 17. Rule 19A of Order V of the Code stated evidentiary value of declaration made by the serving officer and rule 19B provides provisions of simultaneous issue of summons for service by post in addition to personal service. For ready reference, rules 17, 19 and 19A of Order V of the Code are reproduced below:

“17. Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or  where  the  serving  officer,  after  using  all  due  and reasonable  diligence,  cannot  find  the  defendant,  and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of  the  summons  on  the  outer  door  or  some  other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon  or  annexed  thereto  stating  that  he  has  so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

19. Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the service officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry  in the matter  as  it thinks  fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.

19A.  A  declaration  made  and  subscribed  by  serving officer shall be received as evidence of the facts as to the service or attempted service of summons.”

The defendant-petitioners adduced one oral witness and the plaintiff-opposite  parties  adduced  two  witnesses  to  prove  their respective case. The certified copies of summons and the reports of the process server were produced before the trial Court and those were marked as Exhibit Nos. Ka(1) – Ka(4). While submitting service returns, the process server made a declaration that he went to the defendants’ house with the summons along with local witnesses but the latter refused to receive the summons whereupon he  served copies of the summons by hanging in the outer front doors of their respective house in presence of witnesses. Evidently, the summons were served under  provisions of rule 17 of Order V of the Code and the  process  server  returned  the  original  summons  with  a  report stating his mode of service as above and the trial Court vide order No. 22 dated 28.10.1998 declared as follows:

“                                                                                                                                                   ”

Now question arises whether, given the facts of the case, such service  can  be  considered  as  due  service  of  summons  upon  the defendant-petitioners.

In  the  Case  of  Santosh  Kumar  Chakraborty  &  ors.  vs.  M.A. Motaleb Hosain and ors., reported in 36 DLR (AD) 248, questions arose whether the provisions as to inquiry, as contemplated in rule 19 of Order V of the Code of Civil Procedure, 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.  The  Appellate  Division  while

answering those questions held as follows:

“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 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.”

In  answering  second  question  regarding  the  Court’s declaration as to due service of summons, the Appellate Division held as follows:

“This provision is mandatory, whether the serving officer  is  or  is  not  required  to  be  examined  as witness. ……….in  both cases it is mandatory on the Court to either declare that the summons has been duly served or order such service, as it thinks fit……The  real  controversy  in  respect  of  this provision is in which ‘manner’ or ‘form’ the Court shall record a declaration that summons has been duly served………no particular form or manner has been  prescribed  in  which  a  declaration  under Order  V  rule  19  C.P.C  shall  be  made  by  the Court…………….. the recording by the trial Court in the  order  sheet  of  the  suit  that  summons  has been  served  is  sufficient  compliance  of  the provision  as  to  Court’s  declaration  that  the summons has been duly served. In fact when the service  is  returned  with  a  declaration  of  the serving  officer  that  he  served  the  summons  by hanging  it  on  a  conspicuous  part  of  the defendants’  house  or  his  place  of  work  in presence of witnesses and if the Court perused the  declaration  along  with  the  service  return containing names of witnesses in whose presence summons was purportedly served and records his satisfaction that summons has duly served, then the  mandatory  provision  of  the  rule  as  to declaration has been complied with.”

By endorsing above view, the appellate Division in the case of Md. Insan Ali vs. Mir Abdus Salam, reported in 40 DLR (AD) 193 held as follows:

“  There is no dispute that the onus to prove that the  summons  was  duly  served upon  the defendant is on the plaintiff. In this case the onus is  found  to  have  been  fully  discharged  as  the process server-server submitted his report, along with  a  declaration,  that  the  has  served  the summons  by  hanging  it  on  the  gate  of  the defendant  when  the  latter  refused  to  accept  it and thereafter the plaintiff appeared in the Court and deposed on oath that the summons was duly served.  Thereupon  the  onus  shifted  upon  the defendant to  prove that the summons was not served as claimed by the plaintiff ……The process- server was, of course, not examined as a witness

as his examination is not mandatory in view of provision  of  rule  19A  of  Order  V,  Civil  P.C. Examination of process server is mandatory when he has simply submitted his report about service of  summons  without  any  verification  or declaration that he had served the summons, but when he made a declaration to this effect then his examination  as  a  witness  is  not  mandatory, although the Court may at its discretion call him as a witness.”

The provision that ‘a declaration of the serving officer shall be received as evidence of the facts as to the service or admitted service of summons’ was available in the proviso to rule 19 of Order V of the Code before ‘The Code of Civil Procedure (Amendment) Ordinance, 1983  (Ordinance  No.  XLVIII  of  1983)’  came  into  force.  Said amendment introduced similar provisions by inserting rule 19A in Order V of the Code. According to this amendment ‘declaration made by a serving officer shall be received as evidence of the facts as to the service  or  attempted  service  of  summons’.  This  view  also  finds support in the case of Khurshid Anwar & another vs. Jamil Akhter, 6 BLD (AD) 83 wherein the Appellate Division held that ‘the purport of the amended rule is that examination of the process server is not mandatory when he has made a declaration  but it is mandatory when  he  has  not  made  such  declaration’.  Same  view  has  been expressed by the appellate Division in Shamsun Nahar Begum vs. Salauddin Ahmed and others, reported in 4 BLC (AD) 285. Moreover, the recording by the trial Court in the order sheet of the suit that the

summons has been served or that the summons has returned after service is sufficient compliance under provision of rule 19 of Order V of the Code as to Court’s declaration.

In the instant case, learned Advocate for the petitioners raised a question that the process server did not make any affidavit as per ‘Form  No.  11  under  APPENDIX-B’  of  the  Code  stating  service  of summons upon the defendants and he only submitted a report which cannot  be considered as  affidavit. This contention  of the learned Advocate has no leg to stand because of the fact that the process- server  made  two  declarations  in  respect  of  service  of  summons under rule 17 of Order V of the Code stating that he went to the defendants’ house with the summons with witnesses but they having refused to receive the summons, he served those by hanging on the defendants’  main  door  in  presence  of  witnesses.  The  trial  Court passed an order on 28.10.1998 that the summons has returned after service and accepting such service fixed the next date for submitting written statements. 

‘Form  No.  11  under  APPENDIX-B’  of  the  Code  of  Civil Procedure  is  applicable  only  when  the  process-server  makes  an affidavit  in  respect  of  service  of  summons  upon  the  defendants under rule 17 of Order V of the Code. There is no requirement of law that the declaration should be made by the process-server showing service of summons upon the defendant under rule 17 in the form of affidavit as prescribed in ‘Form No. 11 under APPENDIX-B’ of the Code’.

Since the trial Court declared in the suit that the summons has returned after service, the requirement of Court’s declaration under rule 19 of Order V of the Code has been complied with. Moreover, the  process-server  made  declarations  in  respect  of  service  of summons  under  rule  17  of  Order  V  of  the  Code  and  since  such declaration of the process-server shall be received as evidence of the fact as to the service of summons upon the defendant-petitioners as per rule 19A of Order V of the Code, I am of the view that the summons upon defendant Nos. 16, 32 and 33 was duly served and the onus was shifted to the defendants to prove by evidence that the summons was not duly served upon them. 

Though  PTW.  1  (Md.  Insan  Ali,  defendant  No.  33)  in  his deposition stated that the summons upon defendant Nos. 16, 32 and 33 was not duly served but the defendants did not adduce any other witness to support such claim. Accordingly, the trial Court rightly held that the defendant-petitioners have failed to prove their case.  

 On the other hand, rule 19B of Order V of the Code provides provisions of simultaneous service of summons by registered post. In the case of Shamsun Nahar Begum vs. Salauddin Ahmed and others, reported in 4 BLC (AD) 285 the Appellate Division held as follows:

“Apart from this, rule 19B(2) of Order V speaks that if acknowledgement due is lost or mislaid or for any other reason has not been received by the Court within 30 days from the date of posting of the  letter  the  Court  issuing  the  summons  shall declare that the summons has been duly served on the defendant.”

In the present case, the summons was also sent by registered

post with acknowledge due to the defendants under rule 19B(1) of

Order V of the Code. While passing judgment on 22.3.2018 in this case,  the   trial  Court  specifically  observed  that  registered  postal receipts in respect of defendant Nos. 16, 32 and 33 were laid with the record of the suit and that  defendant Nos. 16 and 32 received the postal summons by endorsing their respective signatures and their acknowledge dues were laid with the record. Thought, in the suit, the trial Court did not declare that the postal summons has been duly  served,  but  from  records  it  appears  that  the  registered summons was duly served upon the defendant petitioners as per law. Moreover, since summons was duly served by the process-server, the postal service became immaterial.    

The trial Court also came to the conclusion that the case was barred by limitation. Admittedly, the miscellaneous case has been filed after nine years from the date of ex parte decree. The trial Court found that the defendants could not prove their date of knowledge about the ex parte decree by adducing any evidence. PTW 1 deposed on behalf of the defendants stating that after knowing about the fact of  ex  parte  decree  from  somebody  on  7.8.2008, they  engaged learned Advocate for inspection of the record of the suit and he inspected the record on 19.08.2008 and thereafter, they filed the miscellaneous case on 16.09.2008.

In his testimony, PT.W 1 could not mention the name of any particular person from whom the defendants for the first time came to know about the ex parte judgment and decree on 7.8.2008 and they also failed adduce any such witness to prove their definite date of knowledge about  ex parte decree. Mere inspection of the record of the suit in a particular date by their engaged learned Advocate cannot be treated as the date of knowledge of the defendants about ex  parte  decree. Admittedly,  ex  parte  decree  was  passed  on 18.7.1999  and  Miscellaneous  Case  No.  117  of  2008  was  filed  on 16.9.2008, long after nine years of the ex parte decree. Accordingly, I am of view that the trial Court committed no illegality in coming to the conclusion that the miscellaneous case was barred by limitation.

It  appears  from  the  impugned  judgment  that  the  Court  of appeal,  as  the  last  Court  of  facts,  after  due  consideration  of  the materials on record came to the finding that the summons was duly served  upon  the  defendant-petitioners  and  concurred  with  the findings of facts and decision of the trial Court.

I do not see any finding of the appellate Court which is based on  non-consideration  and  misreading  of  any  evidence.  Since  the appellate Court, after sifting the evidence on record, found that the summons was duly served upon the defendant-petitioners, I find no reason  to  interfere  with  the  concurrent  findings  of  facts  of  the appellate Court. The impugned judgment of the Court of appeal does not also suffer from legal infirmity or impropriety and as such, no interference is called for by this Court.

In view of the above, I find no merit in this Rule.

In the result, the Rule is  discharged, however, without any order as to costs.

Send down the L.C.R. along with a copy of this judgment at once to the Courts below.