High Court Division(Civil Revisional Jurisdiction)
The Supreme Court of Bangladesh
Civil REvision No. 4639 of 1995 with Civil Revision
No. 4640 of 1995

Mohammadullah and others
Vs
Janab Md. Shamsul Alam

Before Mr. Justice Md. Abdul Wahhab Miah
Date of Judgement : April 1, 2002
Result: Rules discharged

Background
Md. Abdul Wahhab Miah, J: These two rules have arisen out of two orders of similar nature passed in Miscellaneous Case No. 29 of 1995 and 30 of 1995 both dated 31.10.1995. The rules are passed by the learned Assistant Judge, 4th Court, Dhaka allowing the said cases which were filed under Order-9 Rule-13 of the Code of Civil Procedure. As similar facts and question of law are involved these rules have been heard together and are disposed of by this single judgement.

Facts in brief
The petitioners in both the rules as plaintiffs filed title suit No. 172 of 1991 and 173 of 1991 in the court of Assistant Judge, 3rd Court, Dhaka on the same day for eviction of their monthly tenants, namely, Md. Shamsul Alam Md. Alam and Haji Abdul Jabbar respectively from the suit premises. Both the suits were decreed exparte on 26.2.1992. The decrees were put into execution vide Title Execution Case No. 8 of 1992 and 9 of 1992 of the same court. In execution of the said decrees the defendants of both the suits were evicted from the respective suit premises. Thereafter two separate application were filed by the said two respective defendant under Order 9, Rule 13 of the Code of Civil Procedure for setting aside to exparte decree.

The applications are stating inter alia that summons of the suits were not served upon them and the plaintiffs in collusion with the process server showed the summons served by hanging and managed to have the exparte decree. The defendant petitioners came to know about the respective exparte decree on 14.1.1995, when the police evicted them from their respective premises. On such knowledge the petitioners through their learned advocate enquired into the matter in court and came to know definitely about the exparte decree. The said applications were registered as Miscellaneous Case No. 3 of 1995 and 4 of 1995. Eventually both the said miscellaneous cases were transferred to the Court of Assistant Judge, 4th court, Dhaka and were renumbered as Miscellaneous Case No. 29/1995 and 38 of 1995.

The Miscellaneous cases were contested by the plaintiffs by filing separate written objection stating inter alia that the summons of the suits was duly served upon the respective defendant. The process server went to the sit premises to serve the summons of the respective suit, but since the defendant refused to accepted the summons, the process server served the same by hanging. Besides the service of summons by hanging the same was also served by registered post as the postal peon returned the same with the endorsement 'refused'. As the defendant of the respective suits did not context the suit the court below rightly decreed the same exparte.

The Court on consideration of the evidence on record both oral and documentary disbelieved the testimony of the process server and came to the definite finding that the report of the process server could not be believed as there was over writing on the service of summons and that although the suit was filed on 13.11.1991, yet, the process server served the summons on 19.9.1991. The court below also found that there was no address of the attesting witnesses as well as their signature on the service return which were shown to have been served by hanging. The court on the positive finding that summons of the suit was not served upon the respective defendant of the suits and that the defendants had no knowledge about the exparte decree allowed both the miscellaneous cases and set aside the exparte decrees and restored the suits to its file and number.

Mr. M. I. Farqui, learned Advocate appearing for the defendant opposite party in both the rules submits that the postal article, namely, the envelope, the summons and acknowledgement due which were allegedly sent to the address of the respective defendant of both the suits, but returned by the postal peon with the endorsement 'refused' do not show that copy of the plaint accompanied the summons. Mr. Faruqui submits that in order to constitutes summons within the meaning of Order-4, Rule I (b) of the Code copy of the plaint must be accompanied with the summons. And if the summons sent to the defendant did not accompany the plaint even if the same returned by the postal peon with the endorsement 'refused' that would not be a refusal by the defendant within the meaning of Order-5, subrule-2, of Rule 19B of the Code. And such refusal could not be accepted as a proper service of summons of the suit upon the defendant by registered post to hear the suit exparte, the court rightly set aside the expert decrees.

Mr Faruqui drew my attention to the fact that the envelops which were allegedly sent to the respective defendant of the suits for service of summons by registered post are with the record and contain only the summons. I have seen the envelope. I have found on the summons and no copy of the plaint accompanying it.

Deliberation
Order IV of the Code of Civil Procedure has dealt with the procedure of institution of suit and Order V of the Code has dealt with issue and service of summons. In answer for point raised by the learned Advocate, I feel it necessary to quote the relevant rules of the two orders of the Code, namely Rule (1b) of Order IV and Rule 2 of Order V. Rule (1b) is as following:

"A plaintiff shall file, along with the plaint, for each defendant a copy of the summons along with a pre-paid registered acknowledgement due cover with complete and correct address of the defendant writ on it."
Rule 2 of Order V of the Code is as following:
"Every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement."

From a reading of the above two provisions of the Code it appears that copy of the plaint is an integral part of the summons. In other words to constitute a summons, within the meaning of the said provisions of the Code plaint must be accompanied with the summons, either it be served by the process server or by registered post.

As found here in before, the summons of the respective suit which were returned by the postal peon with the endorsement 'refused' did not accompany the plaint. And as such, refusal to receive the summons, if there be any by the respective defendant of the suits could not be construed as refusal within the meaning of Rule 19B(2) of Order-V of the Code.

Decision
For the discussions made above, I find substance in the submission of Mr M R Faruqui and hold that the summons in both suits were not at all served upon the respective defendant by registered post. So far as the findings of the courts below as regard the service of summons by the process server. Mr Islam found it difficult to assail the same with reference to the materials on record. Since the trial court on consideration of the evidence on record both oral and documentary came to the definite finding that the summons of the suit was not served upon the respective defendant of both the suits and that the respective defendant had no knowledge about the suit and the exported decree till 14.1.1995 which are based on proper consideration of the evidence on record, this court sitting in revision can not interfere with the said finding of fact.

In the result these Rules are discharged without any or as to cost. The impugned orders are maintained.

Mr. Mahmudul Islam, for the petitioner and Mr. M. I .Faruqui with Mr. M. Selamullah, for the opposite party.