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TMI Blog1985 (12) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... widow of Jugal Kishore. On October 14, 1974, Respondents Nos. 5 to 9 filed a suit for partition in the Court of the Subordinate Judge, Bankura, being Title Suit No. 93 of 1974, against the other Respondents and the Appellant for partition. It was averred in the plaint that the Appellant and Respondent No. 10 were the benamidars of Gopal Chandra and Jugal Kishore in respect of some of the properties mentioned in the suit and they had no right or title therein. The plaint concluded by stating, "For the sake of justice they were made the principal defendants". It would thus appear that the suit was really filed against the Appellant and Respondent No. 10 to obtain a declaration that they had no right, title or interest in certain properties which stood in their names. We are concerned in this Appeal with only one of these properties, namely, Bharat Oil Mill. There was a registered deed of partnership dated July 8, 1957, whereby the said Mill was held in partnership by Respondents Nos. 5 to 9 who were the Plaintiffs in the suit, Respondent No. 1 who was Defendant No. 1 in the suit and the Appellant who was Defendant No. 5 in the suit. Under the said deed of partnership, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e income received by him as his share of profits in the said firm of Bharat Oil Mill and that the Income-tax authorities had investigated the matter and had held that he was carrying on business on his own account and had obtained money from his mother for becoming a partner in the said business of Bharat Oil Mill. The Appellant's said Application was opposed by Respondents Nos. 1 to 9 who contended that the Appellant had been duly served with the writ of summons and the said application was, there- fore, barred by limitation. After taking evidence, the learned Additional Subordinate Judge came to the conclusion that the summons was not duly served upon the Appellant and that the said application was not barred by limitation and he accordingly allowed the said application with costs and set aside the said ex parte decree as against the Appellant and Respondent No. 10. Respondents Nos. 1 to 4 as also some of the other Respondents thereupon filed applications in revision in the Calcutta High Court. The High Court held that there was no formal order issuing process upon the Defendants in the said suit, but process was in fact issued by the office. It further held that there were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to questions of jurisdiction. While in a first appeal the court is free to decide all questions of law and fact which arise in the case, in the exercise of its revisional jurisdiction the High Court is not entitled to re-examine or re-assess the evidence on record and substitute its own findings on facts for those of the subordinate court. In the instant case, the Respondents had raised a plea that the Appellant's application Under Rule 13 of Order IX was barred by limitation. Now, a plea of limitation concerns the jurisdiction of the court which tries a proceeding, for a finding on this plea in favour of the party raising it would oust the jurisdiction of the court. In determining the correctness of the decision reached by the subordinate court on such a plea, the High Court may at times have to go into a jurisdictional question of law or fact, that is, it may have to decide collateral question upon the ascertainment of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of their own accord without any summons being served upon them. Though on December 6, 1974, the suit was adjourned to December 17, 1974, on December 16, 1974, the Plaintiffs, that is, Respondents Nos. 5 to 9, and Respondents Nos. 1 to 4 filed a petition of compromise and it was ordered to be put up on the date fixed for the next hearing of the suit, namely, on December 17. 1974. On that date the said petition of compromise was taken on file and the plaintiffs were directed to produce evidence ex pane, if any, as against the other Defendants, that is, the Appellant and Respondent No. 10, by December 23, 1974. Thereafter, on various dates the Plaintiffs kept on asking for time to adduce their evidence ex pane and ultimately on February 6, 1975, the said compromise was accepted by the court. The order sheet of that date further states, "No steps taken by the Defendants 5 and 6 who are also found absent on repeated calls. So the suit is taken up for ex parte hearing as against them. P. W. 1 Rabindra Nath Nandy (that is Respondent No. 8 who was Plaintiff No. 4 in the suit) is examined for the Plaintiff". The court then passed the order "that the suit be decreed on comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that date. What is even more strange is that the writ of summons calls upon the defendants to appear either in person or through a duly instructed lawyer on November 27, 1974. There is no order of the date "November 27, 1974" to be found in the order sheet, and if the date fixed for appearance were November 27, 1974, it is difficult to understand how Respondent Nos. 1 to 4 appeared for the first time only on December 6, 1974. According to the return of the process server, he went on October 19, 1974, at 12 noon to Nungola Road, searched for the Defendants, found them, showed them copies of the writ of summons, explained the contents thereof to them and asked them to accept the same by giving receipts but as they refused to do so he hung the copies of the summons on the main doors of their respective residential houses. At the foot of the return, there is an endorsement made by the process server stating that "I have served this summons in the manner written above". Below it the names of two witnesses, namely, Rabi Rochan Sen, Guiram Modak appear with the note that "the two witnesses have not signed their own names". The return does not mention who had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the declaration of the serving 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". Under Rule 19A of Order V which was added by the Calcutta High Court in Order V of the CPC, a declaration made and subscribed by a serving officer shall be received as evidence of the facts as to the service or attempted service of the summons. Under Rule 6(1) of Order IX of the CPC, prior to its amendment by the CPC (Amendment) Act, 1976 (Act No. 104 of 1976), where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the court may proceed ex-parte. There is nothing in the order sheet to show that the Trial Court took any evidence to ascertain whether the summons was duly served or not. It neither examined the process server nor treated the above return of service as sufficient proof. It did not record that the summons had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keep the decree a closely guarded secret from the Appellant as it was not shown that they had any interest adverse to the Appellant. This inference was wholly contrary to all the facts on the record. The father and the uncle were two of the Plaintiffs in the suit and their case was that the Appellant was the benamidar of the Plaintiffs in respect of the properties standing in his name. The father and the uncle both had opposed the Appellant's application Under Rule 13 of Order IX of the CPC. The Appellant had deposed that it was on November 4, 1974, that his uncle had informed him about the suit. Being ranged on the opposite side and opposing the Appellant's said application, it was for his uncle (Respondent No. 7) to step into the witness-box and deny this. He did not do so and, in fact, none of the Respondents stepped into the witness-box to depose that anyone of them had informed the Appellant about either the suit or the said decree. In this connection, the second prayer in the plaint is instructive. It reads as follows : If the parties fail to settle amicably within the stipulated time of the Court, a Surveyor-Commissioner be appointed for partitioning the suit prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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