Rangi Lal v. Laxmi Narain Gupta — 1983 DIGILAW 833 (ALL)

JUDGMENT V.K. Mehrotra, J. - Rangi Lal, applicant in this revision under Section 25 of the Provincial Small Cause Courts Act, is the tenant of a shop of which Laxmi Narain Gupta and Udai Narain Gupta, opposite parties are landlords. A suit filed by the landlords for the ejectment of Rangi Lal on the ground of default in payment of rent was decreed on May 30, 1981. On August 10, 1981 an application under Order 9, Rule 13 CPC for setting aside the ex parte decree on the ground that summons were not duly served upon him was moved by Rangi Lal. This application having been dismissed on the ground that Rangi Lal was served by the summons on March 12, 1981 through his son Jagdish Chandra so that the application had been filed beyond the prescribed period of limitation and was, thus, not maintainable; Rangi Lal has approached this Court in the present revision. 2. The case of the landlords, as given out in the counter-affidavit of Udai Narain, was that Jagdish Chandra, son of Rangi Lal resided within him and it is upon him that the summons of the original suit were served on March 12, 1981 as was apparent from the report of the process server on the counter-foil of the summons in the original suit. The summons were thus duly served. Besides, Rangi Lal was aware of the pendency of the suit and his case that he learnt about the decree for the first time on August 7, 1981 was incorrect. 3. The Addl. District Judge who considered the application under Order 9, Rule 13, CPC posed the question for determination before him to be "whether service made upon Jagdish Chandra, the son of Rangi Lal (could) be treated to be sufficient service upon Rangi Lal or not. Further, if the service was not a proper service, the question to be determined was as to when Rangi Lal came to know of the decree. He then proceeded to examine the correctness of the assertion made by Rangi Lal in the affidavit filed by him in these proceedings that he learnt about the decree dated May 30, 1981 only on August 7, 1981. He then proceeded to examine the correctness of the assertion made by Rangi Lal in the affidavit filed by him in these proceedings that he learnt about the decree dated May 30, 1981 only on August 7, 1981. After discussing the evidence before him and taking note of the circumstances of the case, he concluded that Rangi Lal had failed to prove that he knew about the decree only on August 7, 1981. According to the learned Judge, the mention of the date of the decree as May 30, 1981 in the application for inspection of record made on behalf of Rangi Lal on July 31, 1981 was indicative of the fact that Rangi Lal had knowledge about the date prior to August 7, 1981. Primarily, on this ground the learned Judge felt that the summons were duly served upon Rangi Lal on March 12, 1981. And, it is thus that he has expressed himself on this aspect :- "The applicant besides his own affidavit also filed the affidavit of his son Jagdish Chandra Gupta, who denied to have received the summons of his father or to have put his signature on the back of the summons.......The question is how the applicant could know on 31.7.81 that the suit had been decreed. His affidavit on the point that he knew of the decree on 7.8.81 stands belied from this inspection application. It is possible only when the applicant was in the known of some proceedings pending against him. Thus even though there has been an affidavit of Jagdish Chander that he did not receive the summons but the circumstances speak that the applicant is not coming with clean hands and the contention of the plaintiff in his affidavit that the applicant had been finding the dates from the diary of the District Judge's Court finds strength. In any case the applicant has failed to prove that he knew of the decree on 7.8.81. If it was so, the date of decree could not have been given in the inspection application which was moved on 31.7.81. Thus from the record the defendant-applicant could not prove that he was not duly served with summons and there is no reason to disbelieve the report of the process-server and the endorsement of Jagdish Chandra on the back of it who has every motive to deny the same being the son of the applicant." 4. Thus from the record the defendant-applicant could not prove that he was not duly served with summons and there is no reason to disbelieve the report of the process-server and the endorsement of Jagdish Chandra on the back of it who has every motive to deny the same being the son of the applicant." 4. Paper No. 10-C is the counter-foil of the summons. On its back, is an endorsement of having received the summons and the copy accompanying it, said to have been made by Jagdish Chandra for Rangi Lal, his father. Below it, is a report of the process-server in Hindi in the following terms : "Shrimanji, aaj 12.3.81 ko bamukam Civil Line main jaakar Shri Rangi Lai ko talash kiya to dukaan par ek saks baithe huye the, naam pucahe par apana naam Jagdish Chandera ladaka Rangi Lal muddaleh bayan kiya aur samman va nakal lekar apana daskhat pita (vasse) hindi mein bana diya." 5. Jagdish Chandra filed his own affidavit stating that he did not receive any summons on behalf of his father nor did he affix his signature on the back thereof. No one approached him for serving the summons and the signatures which were shown to him in Court on October 17, 1981 he was not present in Kanpur and gone away to Farrukhabad to meet his ailing sister. Further, that he used to sign in English and did so even while operating his bank account. 6. These assertions of Jagdish Chandra have not been accepted by the learned Judge as he felt that being the son of Rangi Lal, he would be a person interested in making them. 7. The main grievance of Rangi Lal in this Court, as put forward by his counsel Sri S.M. Dayal, has been that inspite of the uncontroverted affidavit of Jagdish Chandra, the Court below was in error in accepting service of summons upon Jagdish Chandra over looking the fact that inspite of applications dated August 29, 1981 & Sept. 1, 1981 (paper Nos. 16 Ga and 17 Ga) that the process server be summoned, the landlords did not produce him nor did they cross-examine Jagdish Chandra who was present in Court on August 29, 1981 and was directed to be present again on September 19, 1981. 8. 1, 1981 (paper Nos. 16 Ga and 17 Ga) that the process server be summoned, the landlords did not produce him nor did they cross-examine Jagdish Chandra who was present in Court on August 29, 1981 and was directed to be present again on September 19, 1981. 8. The order sheet of the Court below, however, reveals that on May 22, 1981 counsel for both the parties agreed not to adduce any oral evidence and requested for argument being heard which was actually heard that day. In this situation the Court was justified in not awaiting production of oral evidence by the parties before making the impugned order. 9. Rangi Lal cannot be permitted to say that the endorsement made by the process-server should not be accepted to be true in the absence of his testimony on oath. But the question still remains whether service, as made, was a valid service in law so as to take the view that defendant Rangi Lal was duly served with the summons. 10. Order 5 of the Code of Civil Procedure deals with the issue and service of summons. Rule 12 of the Order provides that wherever it is practicable the service shall be made on the defendant in person, unless he has an agent empowered to accept service in which case the service on such agent shall be sufficient. The clear intendment of this rule is that an effort should first be made to find out the defendant and serve him personally. The fact that such an effort was made should appear from the report of the officer entrusted with the task of affecting service of summons or should be established by evidence before the Court. The object of service summons on the defendant is to ensure that he is able to contest the proceedings if he likes. The emphasis in this rule upon service of summons on the defendant in person, if practicable, is to provide him with an effective opportunity of contesting the claim made against him. Service of summons is not mere formality. Each defendant, where there are many, is contemplated to be served in the proceeding Rule 11 except in cases otherwise prescribed. Where service upon others than the defendant is envisaged, specific provision has been made about it. Rules 13, 14, 15, 17 and 20 of Order 5 are illustrations thereof. 11. Service of summons is not mere formality. Each defendant, where there are many, is contemplated to be served in the proceeding Rule 11 except in cases otherwise prescribed. Where service upon others than the defendant is envisaged, specific provision has been made about it. Rules 13, 14, 15, 17 and 20 of Order 5 are illustrations thereof. 11. The affidavit of Udai Narain, one of the landlords, filed in reply to the affidavit of Rangi Lal contains inter alia, the following assertion in paragraph 8 : "....... The commons issued in the original suit were served upon Shri Jagdish Chandra, the son of the applicant on 12.3.1981 as is evident from the report of the process-server at the counter-foil of the summons on record of the original suit. As such the applicant was served with the summons and it is absolutely false to allege that the applicant was not served with the summons or he had no knowledge of the suit........" It is obvious that about service of summons, the only basis put forward is the report of the process-server. 12. What does the report of the process-server say ? All that it says is that when he went in search of Rangi Lal to his shop in the Civil Lines, he found a person sitting therein who, on inquiry, disclosed his name as Jagdish Chandra son of Rangi lal and who, after accepting the summons and the copy accompanying it affixed his signature in Hindi. There is not suggestions in this report that any effort was made by the serving official to find out the whereabouts of Rangi Lal or to serve him personally. Can, on the facts mentioned in the report, it be assumed that it was not practicable to serve Rangi Lal personally with the summons. The answer obviously, is 'no'. Can than it be said that for the purpose of Rule 12 Jagdish Chandra was an agent "empowered to accept service" on behalf of Rangi Lal so as to hold that service of summons was sufficient on that account. There is no suggestion in the report of the serving official nor has anything been said in the judgment of the Court below to the effort that the Jagdish Chandra was an agent empowered to accept summons on behalf of Rangi Lal. There is no suggestion in the report of the serving official nor has anything been said in the judgment of the Court below to the effort that the Jagdish Chandra was an agent empowered to accept summons on behalf of Rangi Lal. The only suggestion which appears from the report, as also in the order of the Court below, is that Jagdish Chandra is the son of Rangi Lal. That, by itself, would not be sufficient to enable the serving official to affect service of the summons upon him at the shop. Even in Rule 15 Order 5, CPC service of summons on an adult member of the defendant's family is envisaged when it is sought to be affected at his residence when the defendant is absent and cannot be personally served with reasonable effort and there is no agent empowered to accept service of summons on his behalf. The mere fact that when the service official went to affect service, he found the son of the defendant sitting at the shop would not entitled him, in the absence of any effort to seek and serve the defendant personally, to effect service upon the son. 13. In Sundrabai Dalichand v. Moreshwar Mahadeo Gokhale, AIR 1959 Bombay 17, a notice following an order of sale of property under Order 21, Rule 64, CPC was not served personally upon Sundrabai (appellant), but has been served upon the Trimbak Sakharam. This service was sought to be justified under Rule 16 Order 5, CPC by placing reliance on the words that service can be affected not only upon an 'agent' of the appellant but also upon any other person. Miabhoy, J. took the view that unless it was established that Trimbak was entitled to accept service for and on behalf of the appellant under any of the preceding rules of Order 5, the notice serviced upon him could not be treated to be validly served notice upon Sundrabai. 14. Miabhoy, J. took the view that unless it was established that Trimbak was entitled to accept service for and on behalf of the appellant under any of the preceding rules of Order 5, the notice serviced upon him could not be treated to be validly served notice upon Sundrabai. 14. Rampiyari Khemka v. Commissioner of Income-tax West Bengal, AIR 1964 Calcutta 367, was a case where notice under Section 33B of the Income Tax Act, 1922 to revise the assessment, served upon the adult son of the assessee who was not away from the town and with whom the son was residing in the same house was held to be duly served upon the assessee by D.N. Sinha, J. In this case, two attempts to serve the notice on the assessee were made one being by registered post which had been accepted but the objection was that it had been received by the assessee's minor daughter. The second attempt was to serve the notice personally but it was received by the assessee's adult son R.S. Khemka. The case of the assessee was that on the relevant dates she was not in Calcutta and that R.S. Khemka did no reside with her. The learned Judge found that R.S. Khemka resided with her and that there was no sufficient reason to think that the assessee was away from Calcutta on the relevant date. In the circumstances of the case, notice was treated to be duly served upon the assessee. The decision in this case as obviously on its own facts and cannot be treated to be an authority for the proposition that service upon the adult son at the business premises, without any effort to serve the defendant personally, would be due service of the summons upon the defendant within the meaning of Rule 12. 15. In Dal Chand v. District Judge, Mathura, 1967 A.L.J. 48, one of the questions considered by S.C. Manchanda, J. was whether communication of an order made under Section 11(1) of the U.P. Imposition of Ceiling on Land Holdings Act, 1961 by serving it upon the sons of the landlord was in accordance with Rule 9 of the rules framed under the Act. The order was passed ex parte against the landlord and his application to set Ist aside on the ground that notice under Section 10(2) was not served upon him was rejected. The order was passed ex parte against the landlord and his application to set Ist aside on the ground that notice under Section 10(2) was not served upon him was rejected. It was observed by the learned Judge that Section 37 of the Act mad the CPC applicable in so far as it related to the trial and disposal of suits so that under Rule 15 Order 5, CPC service upon any member of the family would be sufficient in the circumstances set out in that rule. Notice in the case had been served upon one of the sons and the supplementary notice was served upon the other son. This was on October 19, 1961 and November 5, 1961 respectively. Rule 15, as it then stood permitted service on any adult male member of the family of the defendant who was residing with him where the defendant could not be found and had no agent empowered to accept service of summons on his behalf. It does not appear from the report of the case whether any effort was made to serve the landlord personally before affecting service upon his sons, for it was implicit in the rule that an effort to find out and serve the defendant personally should first be made. And, that has been made explicit now by providing that where there is no likelihood of the defendant being found at the residence within reasonable time and there is no agent empowered to accept notice of summon on his behalf, then, service may be made on any adult member of the family. 16. In Budh Ram v. Om Prakash Agarwal, ILR 1969(1) Alld. 817, a Division Bench of this Court at Lucknow was dealing with a case where appellant Bodh Ram had refused to take notice which had been issued under Section 14(2) of the Arbitration Act, 1940 but it had been accepted by his son who was an adult male member of the family, Service upon the son was treated to be due service upon the defence in these circumstances. 17. On the facts, even as found by the trial judge, the defendant could not be held, in the eye of law, to have been duly served with the summons. 17. On the facts, even as found by the trial judge, the defendant could not be held, in the eye of law, to have been duly served with the summons. The learned Judge was in error, in the circumstances of the present case, to hold that Rangi Lal had failed to establish that he was not duly served with the summons as he was served with the summons on March 12, 1981 through his son Jagdish Chandra. On this untenable view the learned Judge clearly failed to exercise the jurisdiction vested in him of examining the prayer of Rangi Lal for setting aside ex parte decree against him on its merits on the erroneous assumption that the application with that prayer moved on August 10, 1981 was beyond time and not maintainable. Even on the assumption that Rangi Lal knew about the ex parte decree dated May 30, 1981 on July 31, 1981 and not on August 7, 1981 as alleged by him, the application made on August 10, 1981 was clearly within the period of limitation. It deserves to be dealt with on its merits. 18. In consequence the revision succeeds and is allowed. The order of the learned Addl. District Judge dismissing the application of Rangi Lal dated August 10, 1981 as not maintainable being barred by time is set aside. The matter is sent back to the trial Judge for dealing with it in accordance with law. In the circumstances of the present case, however, I would leave the parties to bear their own costs of this Court.