IN THE SUPREME COURT OF BANGLADESH

   HIGH COURT DIVISION

            (CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Badruzzaman.

  And

Mr. Justice Sashanka Shekhar Sarkar

FIRST MISCELLENEOUS APPEAL No. 218 OF 2022.

Alhaj Mozammel Hoque Bhuiya

                   --------- Petitioner-Appellant. 

-Versus-

Md. Humayun Kabir

                  ........Opposite Party Respondent.

  Mr. Md, Salim Reza Chowdhury, Advocate

                               ........ For the appellant.

  Mr. Md. Shamsul Haque, Advocate

         ...........For the respondent.

 Heard on: 21.04.2024, 07.05.2024.  Judgment on: 12.05 .2024.

Sashanka Shekhar Sarkar, J

This appeal is directed against the judgment and order dated 31.05.2022 passed by learned Joint District Judge, 1st

Court, Dhaka dismissing Miscellaneous Case No. 16 of 2020 filed under Order IX rule 13 of the Code of Civil Procedure.

The facts, necessary for disposal of the appeal, in short, are that respondent No.1 as plaintiff instituted Title Suit No. 843 of 2011 impleading the appellant as defendant No. 1 for declaration of title in respect of the suit land, contending inter alia that the plaintiff managed to obtain a collusive exparte decree on 11.05.2014 against defendant No. 1 by suppressing summons. Defendant No. 1 had no knowledge about the suit and exparte decree. He for the first time came to know about the exparte decree when he was served upon a written notice by the plaintiff for mutating his name. Thereafter, he filed the Miscellaneous  Case  for  setting  aside  exparte  decree  under order IX rule 13 of the Code after 18 days from the date of his knowledge.

The  plaintiff  contested  the  case  by  filing  written objections. The learned Joint District Judge, 1st Court, Dhaka

upon hearing of the parties and perusing the evidence and materials  on  the  records  dismissed  the  Miscellaneous  case vide  Judgment  and  order  dated  31.05.2022  as  against  that defendant No.1 has preferred this appeal.

Mr.  Salim  Reza  Chowdhury,  the  learned  Advocate, appearing for the appellant submits that the plaintiff managed to obtain a collusive exparte decree against defendant No. 1 without  serving  any  summons  and  notices  upon  him.  The summons  and  notices  alleged  to  have  been  served  upon defendant No. 1 was done in collusion with the process server. Defendant No.1 filed the Miscellaneous Case for setting aside exparte decree under Order IX rule 13 of the Code within time of his knowledge. Mr. Salim Reza further submits that it is the

duty of the plaintiff to prove that the summons upon defendant No. 1 was duly served but he totally failed to discharge his duties as the law provides. He lastly submits that defendant No. 1 did not do any delay in filing the case under Order IX rule 13 of the Code and as such, the impugned judgment and order is liable to be set aside. In support of his submissions learned Advocate placed reliance upon the case of Hassan Din and another –Vs- Jalal Din and 2 others reported in 1991 CLC -33, whereat settled that “Application for setting aside ex- parte decree which involved decision on disputed question of facts and law ought not to have been disposed of summarily without proper inquiry by the Court.” In the case of Wazed Ali  Sarder(Md)-Vs-  Md.  Afsanuddin  Sarder  and  others reported in 48 DLR(AD)159 whereat settled that “Once the defendant denies service of summons upon him, whole onus shifts  to  the  plaintiff  who  has  to  prove  satisfactorily  that summons was in fact duly served.” In the case of Soni Gopal Das -Vs- Mohammad Habibullah reported in 10 MLR (AD) 350 whereat settled that “ In a case where the exparte decree is challenged on the ground of non-service of summons in the suit the onus lies upon the plaintiff to prove the service of summons  by  cogent  evidence  and  by  examination  of  the

disputed signature of the recipient by comparison.” In the case of Md. Hyder Ali Mia – Vs- Razia Begum and others reported in 1 BLT (AD), Page-1, whereat settled that “ To prove the service of summons were duly served, the process server and the attesting witness should be examined if the allegation is brought by defendant that the suit was decreed exparte without serving summons upon the defendant.”

In the case of Md. Insan Ali –Vs- Mir Abdus Salam reported  in  40  DLR(AD)-193,  whereat  setled  that  “Onus exclusively lies upon the plaintiff to prove that the summons was duly served.” In the case of Abdur Rashid and others –vs- Abdul Barik and another reported in 35 DLR (AD) 162 it is held that “ Due service of summons on the defendant being essential and when the court is satisfied that there was no due service it is bound to set aside an exparte decree.” In the case of Abul Khair Meah –vs- Abdul Latif Sarder reported in 32 DLR (AD) 167 it is held that “ exparte decree by suppressing of summons, decree fraudulently obtained is a nullity.

On  the  other  hand,  Mr.  Md.  Khalilur  Rahman,  the learner Senior Council appearing for the respondent submits that the  application  of  defendant  No.  1  for  setting  aside exparte decree under order IX rule 13 was hopelessly barred by limitation. The plaintiff duly issued summons and served notices upon defendant No. 1 as per law by both registered post  and  personal  service  by  the  process  server.  The declaration  of  the  process  server  endorsing  the  service  of summon was done under order V rule 19(a) of the Code need not to be proved by adducing any evidence as had been done in  compliance   with   the  latest  amended  laws.  The documentary evidence with regard to service of summons i.e. the service through registered post as well as personal service have been certified by the process server is to be considered as a  fact  of  judicial  notice  which  need  not  be  proved  under section  56  and  57  of  the  Evidence  Act  and  has  to  be considered its existence under section 114 of the Evidence Act. Mr. Rahman lastly submits that the plaintiff by the above documentary  evidences  has  proved  that  the  service  of summons  upon  defendant  No.  1  was  served  following  the stipulated legal procedure and the Court has decreed the suit exparte finding the service exhausted by both summons and notices upon the defendant No. 1. So to nullify the exparte decree, the burden of proving non service of summons  is entirely lies upon defendant No. 1 which he failed and as such the trial court rightly dismissed the case.

Mr. Md. Khalilur Rahman in support of his submissions has placed reliance upon the following decisions. The case of Abdur  Rob  Mollah  –Vs- Shahabuddin  Ahmed  and  others reported  in  13  MLR  (AD)-319  whereat  settled  that,  “ Summons or notice sent to the defendant under Order V rule 19B(2) by registered post with acknowledgement due  slip when  received  back  with  endorsement  of  postal  peon  as “refused”  is  held  to  be  due  and  proper  service.  The  said summons or notices or letter sent to the person at his correct address by registered post and returned with the endorsement of  the  postal   peon  as  “refused”  has  presumption  of  due service of the same.”

On hearing of both the parties, perusing the impugned judgment  and  order  and  considering  the  settled  principles referred to above in the case decisions, it is observed that as defendant No. 1 agitated that the plaintiff managed to obtain an exparte decree without serving any summons and notice upon him and the papers so produced in the name of good service are all created in collusion with the office bearer and process server of the court which the plaintiff claimed to be genuine and proper and was done in compliance with law as prescribed  under  order  V  rule  19(B)  of  the  Code  of  Civil Procedure, the burden of proving the service of summons was first  of  all  heavily  lies  upon  the  plaintiff.  The  defendants allegation  is  that  the  plaintiff  managed  to  obtain  exparte decree without serving summons which the plaintiff has to prove false by evidence. Record shows that the plaintiff did not take such steps to prove that proper service was done in the  suit.  When  the  allegation  of  the  defendant  is  that  no service  of  summon  was  done  then  it  was  the  duty  of  the plaintiff to discharge first that the allegation of non-service of summons was false by adducing evidence but practically the plaintiff did not adduce any evidence to discharge the primary duty  as  the  law  shifts  upon  him.  The  process  server  and attesting witnesses should have been examined to prove that the service was duly done but since the plaintiff did not do so, the defendant’s obligation to prove the summons were not served dis not arise.

In course of hearing Mr. Rahman imparted that in the mean  time,  the  exparte  decree  debtor  has  transferred  the property to others and the transferee and decree holder have filed suit and counter suit against each other. These are all practically disputed questions of facts and cannot be resolved without evidences. It is settled principle of law that the right to challenge the exparte decree cannot be extinguished even after transfer of property. The judgment debtor is entitled to apply even though he sold the property to the third person held ; in the case of Bayjit –vs- Monnu AIR 159 All India 251. So the arguments led by Mr. Rahman that the right of the appellant on the suit property has already been extinguished by way of transfer to others and he has no right to challenge the exparte decree is not sustainable in law.

In this particular case two questions are mooted :

The primary burden lies upon whom when the allegation is  no  service  done;  since  the  defendant  alleged  that  the plaintiff  obtained  exparte  decree  without  serving  any summons, the primary duty cast upon the plaintiff to discharge that the summons were duly served. The case record shows that the plaintiffs did not at all take any steps to discharge his primary duties. So the burden of proving that the summons were not served must not lie upon the defendants. “Where due service  of  summons  is  challenged,  the  onus  is  upon  the plaintiff to prove that the summons were duly served” -1 BLC (AD) 179. “Proper service of summons is a pre-requisites of sustainability of exparte decree”-2 MLR 383,

To what extent the question of limitation in adjudicating a Miscellaneous Case for setting aside exparte decree under Order IX rule 13 is relevant;

Application has to be filed within 30 days from the date of exparte decree, or where the summons has not been duly served, 30 days from the date when the defendant came to know about the exparte decree.

The  facts  remains  that  defendant  No.1  filed Miscellaneous Case for setting aside exparte decree 18 days after his knowledge which within the period of limitation as provided under Article 164 of the Limitation Act.

It has been settled in the case of Bangladesh –vs- Mashin Rahman  reported  in  50  DLR  (AD)  205  that  “The  bar  of limitation will not be applicable when some elements of fraud in obtaining the exparte decree are found.”

So, on considering the facts and the decisions discussed above we unhesitantly come to the conclusion that the plaintiff could not prove that summons upon defendant No. 1 was duly served  and  as  such,  the  trial  court  committed  illegality  in dismissing the miscellaneous case. Accordingly, the exparte decree is liable to be set aside.

So, we find merit in the appeal.

 In  the  result,  the  appeal  is  allowed.  The  impugned judgment and order dated 31.05.2022 passed by learned Joint District Judge, 1st Court, Dhaka are set aside. Miscellaneous case No. 16 of 2020 filed under order IX rule 13 of the Code of  Civil  Procedure  is  allowed.  The  exparte  judgment  and decree dated 11.05.2024 are set aside. The suit is restored to its original file and the number and the trial court is directed to dispose of the suit expeditiously, in accordance with law. 

The order of stay granted earlier is hereby recalled and vacated.

Communicate at once.

(Mr. Justice Sashanka Shekhar Sarkar) I agree.

(Justice Md. Badruzzaman)