HIGH COURT FORM (J) 3 HEADING OF JUDGEMENT IN APPEAL. Dist. Cachar, In the court of Addl. District Judge, Cachar, Silchar.

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1 1 of 6 HIGH COURT FORM (J) 3 HEADING OF JUDGEMENT IN APPEAL. Dist. Cachar, In the court of Addl. District Judge, Cachar, Silchar. Present:- Shri S.P.Moitra. A.J.S Addl. District Judge, Cachar,Silchar. Misc Appeal No. 3 of 2012 This the 10 th day of December/14 Sri Ranjit Kumar Malakar...Appellant -Versus- Sri Ranju Malakar.... Respondent This appeal having been heard on in presence of ; Sri R.H.Laskar, advocate for the appellant. Sri P. Deb, advocate for the respondent. and having stood for consideration to this day the court delivered the following judgment ; J U D G M E N T 1. The present appeal has been preferred against the order dated 2/4/12, passed by Smti P.B.Sangama, the Ld. Civil Judge No.1, Cachar, Silchar in Misc. Case No. 18/09, dismissing the prayer of the appellant/petitioner for setting aside the exparte decree dtd , passed by the Ld. Civil Judge No.1, Cachar, Silchar in T.S No.46/ The aforesaid Misc. Case was registered on the basis of an application of the defendant/petitioner under Or. IX Rule 13 of the C.P.C for setting aside the exparte decree dtd.15/7/08, passed in T.S NO.46/07. It is contended that no summon of the aforesaid Title Suit was served upon the defendant/petitioner and he was not aware of the institution of the said Title Suit No. 46/07 or its dates of hearing. It is also contended that the defendant/petitioner came to know about the aforesaid decree for the first time only on 28/3/09, after getting the notice sent to him through registered post at his permanent address at Langting Bazar, N.C Hills in connection with T.Ex. Case No. 6/08. It is once again contended that prior to 28/3/09, the defendant/petitioner absolutely had no knowledge about the institution of said T.S No.46/07 and passing of exparte decree dtd. 15/7/08 in the said suit. It is also contended that

2 2 of 6 immediately after receiving the said notice, the defendant/appellant rushed to Silchar on 1/4/09 and after engaging an advocate, made searches through the said advocate and came to know about the institution of the said suit. It is contended further that the plaintiff/respondent in collusion with the Process Server and others, managed a false and collusive report of the Process Server, showing service of summon to him by hanging in his so-called place of living at Silchar and stated that since last 15 years he has no other place of living and he has no dwelling house or residence at Kalibari Road, Silchar town. It is contended that the plaintiff instituted the T.S No.46/07 by giving false address of the defendant/petitioner in his plaint. It is also contended that there was no order for service os summons by hanging nor was there any summons sent through registered post. Accordingly, the defendant/petitioner prayed for restoration of the suit to file and for setting aside the exparte decree passed in the said suit. 3. The O.P(present respondent) contested the Misc. case by submitting written objection, contending, inter alia, that the petitioner Ranjit Kumar Malakar being the parmanent resident of Kalibari Road executed the deed of agreement for sale on 30/10/07 furnishing his address at Kalibari Road, Silchar Town. It is also contended that the summon was issued to the said defendant/petitioner in the said address and Process Server found him there. It is further stated that after knowing the contents of the plaint from the Process Server, he refused to accept the same. It is also stated that the Process server was examined by this court on receipt of the return copy and held that the summon had been duly served. The plaintiff/o.p also denied the contention fo the petitioner that he could learn about the exparte decree after receiving the notice of the execution case. It is also stated that the petitioner has taken a false plea to delay the execution of the decree passed against him and hence the O.P prayed for dismissal of the Misc. case with cost. 4. In course of trial, the petitioner Ranjit Kumar Malakar adduced his evidence as P.W.1. One more witness,namely, Arabinda Malakar was examined by him as P.W.2. This witness also proved one birth certificate of his daughter, while adducing his evidence. On the contrary, the plaintiff/o.p did not adduce any evidence on his behalf. 5. At the conclusion of the trial, the Ld. Trial court after hearing the argument of both the sides, passed the impugned order dtd. 2/4/12,

3 3 of 6 rejecting the prayer of the petitioner/appellant. Being highly aggrieved by and dissatisfied with the aforesaid order dtd. 2/4/14, passed by the Ld. Civil Judge No.1, Cachar, Silchar the present apellant/plaintiff preferred the instant appeal on the grounds set forth in the Memo of Appeal. 6. Called for LCR has been received and perused the same. 7. Heard the Ld. Counsel for the parties. 8. It is true that in the Cause Title of the plaint of T.S 46/07, the address of the present appellant/defendant was shown as Kalibari Road, Silchar Town, P.O & P.S-Silchar, Ph-Barakpar, Dist-Cachar. It is seen that the summon was issued to the defendant/appellant in the said address given in the cause title of the plaint. It is also seen that the Process Server, Biren Singh on 18/1/08, served the summon by hanging, allegedly on the ground that the defendant/appellant refused to receive the same. In the Title Suit, said Biren Singh was examined as C.W.1 and he exhibited the summon and also exhibited the signatures of the witnesses. The Ld. Trial court accepted the service of summons and thereafter proceeded with the suit exparte. The petitioner/appellant, by filing the Misc. case No. 18/09, challenged the aforesaid service of summons and contended that his permanent residence was not at Kalibari Road, Silchar, rather, he has been residing at Langting Bazar, N.C Hills, Assam for long 15 years with his family. The Ld. Trial court discussed the evidence of the witnesses in detail. But, it transpires that all along the said petitioner as P.W.1 insisted that he has been residing at Langting Bazar, P.O-Langting Bazar, N.C Hills, Assam for long 15 years and he has no residence at Kalibari Road, Silchar town. He also insisted in his examination in chief on affidavit that no summon of the suit was served upon him and he was not aware of the institution of the aforesaid Title Suit No. 46/07. He also insisted that he came to know about the suit and exparte decree for the first time only on 23/3/09, on getting the notice of T.Ex.Case No. 6/08, through registered post. It is seen from his testimony that said notice was sent to his permanent address at Langting Bazar, NC hills. The witness also stated that although he has/had no residence or dwelling house at Kalibari Road, Silchar town, the plaintiff in collusion with the process server, got a collusive report written with the malafide intention to gain wrongfully. It is also stated that the court was mislead by the false report of the process server and proceeded with the suit exparte against the

4 4 of 6 defendant/appellant vide order dtd. 4/8/08. He reiterated that as he was not residing at Kalibari Road, Silchar town, and the process server never found him, nor tendered any summon to him and as such there was no question of refusal to receive the summon. It is also stated in the examination in chief that there is no dwelling house of the defendant/appellant at Kalibari Road, Silchar and as such the report regarding the service of the summons by hanging in the front wall of the so-called house of the defendant/appellant was false. In support of his contention, he also proved a birth certificate in the name of his daughter namely Tumpa Malakar. Ext.1 is the said birth certificate(proved in original) and in the said birth certificate, the permanent address of the petitioner/appellant was shown as Langting Bazar, P.O-Langting, Dist. N.C Hills. 9. During cross-examination, the witness stated that previously he had some land at Kalibari Road, Silchar, but at present he had no land at Kalibari Road, Silchar. He also denied selling of any land to the plaintiff/o.p. He forcefully denied of having any residence at Kalibari Road, Silchar. During cross-examination he further stated that his original homestead is at Bhanga, Karimganj. He further added that he does not know anything about the passing of any decree and after receiving a notice in the execution case only he could learn about the facts for which restoration petition was filed by him. He further stated that he inherited the said property at Kalibari Road, Silchar from his father. 10. His evidence was corroborated by P.W.2 Arabinda Malakar, who testified that the defendant /petitioner Ranjit Kumar Malakar has been permanently residing at Langting Bazar, N.C Hills, Assam since He also asserted that said Ranjit Malakar has his business establishment there at Langting Bazar and has been residing there continuously with his family members for last years. He specifically asserted that the defendant/petitioner had / has no residential house/houses at Kalibari Road, Silchar or any where in Silchar Town. 11. During cross-examination, the witness asserted that he knows the petitioner Ranjit Kr. Malakar for long years. He asserted that he has business at Kalibari Road, Silchar. The witness also stated that he never saw Ranjit Malakar in carrying business at Kalibari Road, Silchar and added that said Ranjit Malakar had no landed property at Kalibari Road, Silchar for last 6-7 years.

5 5 of The Ld. Trial court while appreciating the evidence of the plaintiff side disbelieved the evidence of the petitioner side. But, on a careful consideration of the evidence of the petitioner side, as well as, the impugned order, I find that the Ld. Trial court could not appreciate the evidence in its correct perspective. 13. Once again, I like to reiterate that the petitioner all along insisted that his parmenent residence is at Langting Bazar, NC hills and he had/has no house at Kalibari Roiad, Silchar. The same was also corroborated by P.W.2 Arabinda Malakar. In support of his oral testimony, the petitioner also submitted the birth certificate of his daughter, issued by the appropriate authority and the same discloses his permanent address at Langting Bazar in the district of N.C Hills. 14. Merely, because a resident of Kalibari Road (P.W.2) knows him, it cannot be said that he had also a resident of Kalibari Road, Silchar. While appreciating the evidence, the Civil Courts are guided by preponderance of probability. The Civil Courts are required to weigh the evidence of both the sides and then must come to a conclusion whose evidence is more probable and believable. 15. Here in the present case in hand,, I find that against the positive assertion of the petitioner, duly corroborated by another witness, i.e, P.W.2, there is no evidence on behalf of the O.P/respondent. The Ld. Trial court considered the exparte evidence of the Process server of this court, adduced in T.S 46/07. But, the evidence of the said process server was imported in this case, without examining him afresh in connection with the said Misc. case. Had it been done, the petitioner/appellant would have got the opportunity to cross-examine the said Process Server and could have tested the veracity of the witnesses in the touch stone of the crossexamination. There was also no any endeavour to examine any other witness of the so-called service of the summons. The plaintiff/o.p also did not adduce any evidence to prove the service of summons upon the defendant/petitioner in T.S No.46/07 and failed to dis-prove the evidence of the petitioner side. 16. Moreover, the plaintiff/o.p also did not produce any documentary evidence or oral evidence to show the falsity of the evidence of the petitioner. Merely, by producing an agreement for sale, which has been challenged by the petitioner, the positive assertion of the petitioner

6 6 of 6 regarding his peremanet address, supported by documentary evidence cannot be dis-proved. 17. Thus, in my considered opinion, the Ld. Trial court failed to appreciate the evidence of the petitioner side in the light of preponderance of probability. Although, there is no other evidence to dis-prove the positive assertion of the witnesses, the Ld. Trial court rejected the prayer for setting aside the decree. At the same time, it is also to be noted that although the summons was sent to the address given in the cause title of the plaint, in the execution case, it was sent to Langting Bazar through registered post. Had it been within the knowledge of the plaintiff that the defendant/appellant has his permanent residence at Langting Bazar, the summons could also been sent in the said address. 18. In view of the discussions made above, I find that the impugned order passed by the Ld. Trial court suffers from infirmities and there is lack of proper appreciation of the evidence on record, for which the impugned order needs to be set aside. 19. In the result, the appeal is allowed on contest, however, without cost. The impugned order dtd. 2/4/12, passed by Smti P. B.Sangma, the Ld. Civil Judge No.1, Cachar, Silchar in Misc. Case No. 18/09 is hereby set aside. In view of the evidence on record, in Misc. Case No 18/09 of the Court of Civil Judge No.1, Cachar, Silchar, I find it just to set aside the exparte decree dtd. 15/7/08, passed by the ld. Civil Judge No.1, Cachar, Silchar in T.S No.46/07 and to restore the original suit for trial in presence of both the sides. 20. Send the LCR with a copy of this judgment. of Dec/14. Given under my hand and the seal of this court on this the 11 th day Dictated & corrected by me; (S.P.Moitra) Addl.District Judge, Cachar,Siclhar. Addl.District Judge, Cachar, Silchar.