Research › Browse › Judgment

Allahabad High Court · body

1999 DIGILAW 1479 (ALL)

KHACHAR SINGH v. D J MATHURA

1999-09-21

D.K.SETH

body1999
D. K. SETH, J. Original Suit No. 77 of 1990 was decreed ex-parte by the learned Civil Judge, Mathura on 28th January, 1992. The petitioner-defendant in the said suit filed an application under Order IX, Rule 13 of the Code of Civil Procedure. The said application was registered as Misc. Case No. 71 of 1992. By an order dated 22nd May, 1999, the learned Civil Judge (Senior Division), Mathura had dis missed the said Misc. Case. Appeal No. 102 of 1999 was preferred against the same. By an order dated 9th August, 1999, the learned District Judge, Mathura had dismissed the said appeal affirming the order dated 22nd May, 1999. These orders have since been challenged in this writ petition. 2. Mr. Janardan Sahai, learned coun sel for the petitioner had assailed the said order on the ground that both the Court below have found that summons were never served on the petitioner defendant. But on the ground that the defendant had knowledge about the suit, the application under Order IX, Rule 13 was rejected. According to him, the Court having recorded a finding that summon were not served only on the basis of presumption, it could not have arrived at such a con clusion, which on the face of the record are perverse and as such, the said orders should be set aside. 3. Mr. Ajay Yadav, learned counsel for the opposite parities contends that the Court had duly proceeded under Order V, Rule 17 of the Code, Order V, Rule 19-A and thereafter had got the notice publish ed in a daily newspaper circulated in the village and that initially the notices were served on the brother of the defendant and subsequently the defendant did not accept the notice as such the Courts have rightly come to a conclusion that the defendant had knowledge of the proceedings. There fore, the orders are justified. 4. I have heard both the learned coun sel at length. It appears from paragraph 8 of the appeal Courts order that the initial ser vice of summons under Order V, Rule 17 of the Code was found insufficient for which fresh service was directed to be made, which was again rejected by process server to have been served by refusal. The Court did not accept the said service and service was directed to be affected under Order V, Rule 19-A of the Code. The Court did not accept the said service and service was directed to be affected under Order V, Rule 19-A of the Code. The said service under Order V, Rule 19-A was also not accepted. From the order sheet it appears that on 21st November, 1990 the plaintiff had applied for publication of the notice in a newspaper. On 17th January, 1991, the suit was fixed on 19th March, 1991 for disposal. Thereafter on 18th January, 1991, another application for publication was moved supported by an affidavit since the earlier application was not supported by an affidavit. By an order dated 18th January, 1991, publication was permitted. On 13th February, 1991, the publication was brought on record. The case was there after fixed for ex-parte hearing and ul timately the suit was heard ex-parte and decreed ex-parte on 28the January, 1992. There is nothing on record to show that procedure under Order V, Rule 20 of the Code was ever adopted, Order V, Rule 20 of the Code is available only when the Court is satisfied that there are reasons to believe that the defendant is keeping out of the way for the purpose of avoiding service and that summons could not be served in ordinary way, then the Court may pass the order for substituted service under sub-rule (1), Rule 20 by affixing a copy of the summons on some conspicuous place in the Court House, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personal ly worked for gain, or in such other manner as the Court thinks fit. There is nothing on record to show that this procedure was ever adopted. On the other hand on an application for publication; permission was granted to pubic the summon. Such publication is also permitted under Rule 20, sub-rule (1-A) of the Code, sub-rule (1-A) prescribes that while acting under sub-rule (1), the Court may order adver tisement in newspaper. Thus such publica tion is part of the procedure of Rule 20 of the Code. The publication cannot be per mitted skipping over sub-rule (1) of Rule 20 of the Code. Such publication may be permitted in addition to substituted ser vice of sub-rule (1) of Rule 20 of the Code but it cannot be permitted skipping over the same. 5. The publication cannot be per mitted skipping over sub-rule (1) of Rule 20 of the Code. Such publication may be permitted in addition to substituted ser vice of sub-rule (1) of Rule 20 of the Code but it cannot be permitted skipping over the same. 5. In the present case, the Court did not accept the service under the Rule 17 or under Rule 19-A of Order V of the Code as sufficient. Therefore, it cannot be said that there was proper service. This Court had also held so. 6. But the Court had proceeded on the basis that the petitioner had knowledge of the proceeding but the Court had not come to any definite finding as to what was the source on which the knowledge was presumed by the Court. The Second Proviso to Rule 13 of Order IX of the Code Provides that any ex- parte order shall not be set\ aside merely because of the ir regularity of service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. 7. In the present case, it is not an irregularity in the service of summons but the Court had held that there was no ser vice of summons. Even if is presumed that there was an irregularity of service of summons because of infraction of Rule 20, still then it is to be noted as to whether the defendant had notice or knowledge of the proceedings. The Court has to come to a specific finding on the basis of the material before it that the defendant had knowledge of the proceedings. In the present case, the Court had presumed knowledge but had not adverted to the details as to how such knowledge is presumed. The Court has to come to a specific finding on the basis of the material before it that the defendant had knowledge of the proceedings. In the present case, the Court had presumed knowledge but had not adverted to the details as to how such knowledge is presumed. 8, On the face of the finding that there was no service of summons, in the absence of any specific finding that the defendant had the knowledge or notice of the proceedings only on the basis of presumption arrived at by the Court below that the defendant might have notice and knowledge of the proceedings through some other source without adverting to the facts to which was the source on which the Court had come to the conclusion, it is not possible to bring the case within the mischief of the Second Proviso of Rule 13, Order IX of the Code. It was incumbent on the Court to arrive at a definite finding on the basis of the material. In such cir cumstances, it appears tnat the impugned orders suffer from material irregularity and illegality in exercise of its jurisdiction and as such, the impugned order are set aside. The ex-parte decree dated 28th January, 1992 is, hereby, set aside. The suit is restored to its original number and file. 9. Since the suit is of the year 1990 and the defendant had appeared and filed his application under Order IX, Rule 13 of the Code, he is directed to file his written statement within one month from today. The learned trial Court will settle the is sues within one month thereafter. The par ties shall discover their documents within another one month and the defendant shall not ask for any time and take all steps to make the suit ready. The learned trial Court shall decide the suit according to its own wisdom and discretion, on merits and according to law, without being influenced by any observations made in this order, as early as possible, preferably within a period of six months from the date a copy of this order is furnished before the learned trial Court. In case the defendant seeks adjournment and attempts to delay the process, it will be open to the Court to proceed ex- parte again. With these observation, this writ petition is allowed. In case the defendant seeks adjournment and attempts to delay the process, it will be open to the Court to proceed ex- parte again. With these observation, this writ petition is allowed. Let a copy of this order be issued to the learned counsel on payment of usual charges at the earliest. Petition allowed. .