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Madhya Pradesh High Court · body

2000 DIGILAW 1279 (MP)

Vishnoo Kant Awasthi v. Jagdeesh Prasad

2000-12-04

V.K.AGRAWAL

body2000
ORDER V.K. Agrawal, J. 1. By the impugned order, application of defendant/respondent under Order 9 Rule 13 read with Section 151 of CPC, for setting aside ex-parte judgment and decree dated 25-10-91 in Civil Suit No. 105-A/91 was allowed and the suit was directed to be proceeded biparte. 2. The plaintiff/petitioner filed a suit for eviction of defendant/respondent. Summons for settlement of issues was issued by the Trial Court. The process server reported that the defendant/respondent had refused service of summons. Accordingly, the Trial Court proceeded against him ex-parte. After recording evidence of plaintiff/petitioner ex-parte judgment and decree was passed. 3. The defendant/respondent filed an application under Order 9 Rule 13 read with Section 151 of CPC, stating that the summon was never tendered to him and that he did not refuse to accept it and that the plaintiff/petitioner had obtained the ex-parte judgment and decree by playing fraud on the Court. Therefore, he prayed that the said ex-parte judgment and decree be set aside. 4. The plaintiff/petitioner resisted the application. According to him, the summons of the suit was duly tendered to the respondent and that he refused to take the same. The Trial Court was therefore justified in proceeding against him ex-parte, and the judgment and decree therefore does not deserve to be set aside. 5. The learned Trial Court after enquiry into the said application found that the summons of the suit was in fact never tendered to or refused by the defendant/respondent. His prayer for setting aside the ex-parte judgment and decree was therefore accepted, and the case was directed to be proceeded with biparte. 6. The learned counsel for the plaintiff/petitioner assailed the impugned order. It is submitted that the Trial Court in the suit examined the process server Guru Prasad before proceeding ex-parte against the defendant/ respondent. After feeling satisfied that the summons was tendered to him and was refused by the defendant/respondent, ordered ex-parte proceedings against him. It has further been submitted that the process server Guru Prasad has resiled from his earlier statement, in order to assist the cause of the defendant/respondent. It has, therefore, been submitted that as the service of summons of the suit on the defendant/respondent was proper; there was no justification for setting aside the ex-parte judgment and decree. 7. It has further been submitted that the process server Guru Prasad has resiled from his earlier statement, in order to assist the cause of the defendant/respondent. It has, therefore, been submitted that as the service of summons of the suit on the defendant/respondent was proper; there was no justification for setting aside the ex-parte judgment and decree. 7. As against the above, the learned counsel for defendant/respondent has submitted that due service of summons on the defendant/respondent of the suit was essential. It has been submitted that the evidence led in the enquiry, on his application under Order 9 Rule 13 of Civil Procedure Code, clearly substantiate his averment that the summons was not duly served on him. Therefore, the Trial Court was justified in setting aside the ex-parte judgment and decree. 8. The question that requires consideration is, as to whether the summons for settlement of issues by the Trial Court was duly served on the defendant/respondent ? 9. It is noticed in the above connection that serving officer Guru Prasad (A.W. 5) examined by the defendant/respondent, in his examination-in-chief has stated that he had tendered summons on non-applicant No. 2-the present defendant/respondent, and that he had avoided taking summons. Therefore, he had appended his report at his home at the back of summons of defendant/respondent. He further states that when the defendant/respondent refused to take notice, he threw the summons at the non-applicant No. 2 and went away. 10. The above statement of process server Guru Prasad (A.W. 5), even if taken on its face value, would indicate that the report on the summons was not appended by him on the spot. Again from the report appended by the process server, at the back of summons the process-server did not state that the summons was served by him by throwing it, as he has tried to state during enquiry on the application under Order 9 Rule 13 of CPC, of the respondent. In fact, in the said report, appended at the back of summons, it is stated that the notice was affixed on the door of the defendant/respondent. However, it is established from evidence on record that there is no door on the shop of the defendant/respondent, where the summons was allegedly served; and in fact there are rolling shutters. In fact, in the said report, appended at the back of summons, it is stated that the notice was affixed on the door of the defendant/respondent. However, it is established from evidence on record that there is no door on the shop of the defendant/respondent, where the summons was allegedly served; and in fact there are rolling shutters. In view of the above difficulty, the serving officer Guru Prasad (A. W. 5) appears to have changed his version and has tried to say that he served the summons by throwing it. 11. The above statement of the process-server being inconsistent with his report is not believable. Moreover, service of summons, as above cannot be accepted and treated as proper service, in view of the specific provisions under Order 5 Rule 17 of CPC, which provides that in case of refusal by the defendant/respondent to accept the summons, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant originally resides or carries on business, or personally works for gain and shall return the original with the report endorsed or annexed thereto; stating the circumstances under which he did so, and the name and address of the person by whom the house was identified, and in whose presence the copy was affixed. 12. It is, therefore, clear that service of summons in case of refusal has to be made in accordance with the above procedure laid down under Rule 17 of Order 5 of the CPC, and that the service cannot be effected in any other manner. As noticed earlier though the serving officer Guru Prasad (A.W. 5) had stated in the report appended to the summons that he had served the summons in the above manner by affixture, but he could not stand the test of cross-examination and when he was faced with the difficulty of the factual aspect, that in fact there was no door in the shop of the defendant/respondent; has resiled from his report, and tried to justify service of summons by stating that he had served the summons by throwing it. Obviously such a statement was only a face saving devise on the part of process-server Guru Prasad (A. W. 5). The statement as above, certain did not deserve to be believed. 13. Obviously such a statement was only a face saving devise on the part of process-server Guru Prasad (A. W. 5). The statement as above, certain did not deserve to be believed. 13. The Trial Court was therefore, wholly justified in rejecting the testimony of serving officer Guru Prasad (A.W. 5). It is therefore, clear that the serving officer did not actually tender the summons to the respondent nor was it refused by the latter. 14. Needless to say that valuable right of the defendant/respondent to put up his defence could only be taken away, if it was proved that service of summons was duly effected on him and that summons was tendered to him and was refused by him. However, in the instant case, it appears that the process-server did not properly effect service and has appended false report. Such a report even if it was supported by affidavit or an earlier statement recorded by the Trial Court before proceeding ex-parte against the defendant/respondent, could not make the matter better for the plaintiff/petitioner. 15. It may be noted that in Kunja Vs. Lalaram and others ( 1987 MPLJ 746 : AIR 1987 MP 252 ), it has been observed that the report of the process-server is not sacrosanct, and that a valuable right is vested in the aggrieved person to contest validity of service; because his vital right to be heard in the case could be impaired immeasurably. 16. The petitioner refuted that the summons was tendered to him or that he refused it. The serving officer appears to have appended a report at his home that he effected service by affixture on the door of the shop of the defendant/respondent. That report was found to be apparently false; because there is no door on the shop of the defendant/respondent. The report was not supported by any attesting witness of the locality. Therefore, there has been violation of provisions of Order 5 Rule 17 of CPC. Thus, the defendant/respondent had successfully established that the service of summons on him was not effected. 17. It may be noted that in G.P. Shrivastava Vs. The report was not supported by any attesting witness of the locality. Therefore, there has been violation of provisions of Order 5 Rule 17 of CPC. Thus, the defendant/respondent had successfully established that the service of summons on him was not effected. 17. It may be noted that in G.P. Shrivastava Vs. R.K. Raizada and others [ (2000) 3 SCC 54 ], the Apex Court has laid down that under Order 9 Rule 13 of CPC, an ex-parte decree can be set aside on the Court feeling satisfied that either the summons were not duly served on the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. It was also observed therein that where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. 18. In view of the above, it is clear that the prayer of the defendant/ respondent for setting aside ex-parte judgment and decree was rightly allowed by the Trial Court. This revision has therefore no merit and is accordingly dismissed. 19. Civil Revision dismissed.