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2001 DIGILAW 1378 (AP)

Karampuri Laxmi v. Karampuri Lachavva

2001-11-01

ELIPE DHARMA RAO

body2001
ELIPE DHARMA RAO, J. ( 1 ) THIS revision petition is directed against the order passed by the Court below dismissing IA No. 394 of 2000 filed by the wife of defendant No. 2 in IA No. 382 of 2000 in OS No. 144 of 2000. ( 2 ) THE petitioner herein filed IA No. 394 of 2000 not to extend the injunction order granted earlier and the same be dropped on the ground that her husband who is defendant No. 2 in the suit left to Gulf Country on 7-11-2000; that the suit filed for permanent injunction in respect of house bearing No. 6-5, Shathrajpalli village, Vemulavada Mandal against defendant No. 2 is not maintainable on the ground that the service of summons, notices and injunction order on the petitioner herein are not valid service. ( 3 ) THE suit was filed on 16-11-2000 and on the same day, the Court below granted temporary injunction and ordered notice. The process server who was entrusted with the service of injunction orders, notice and summons reported that it was represented to him that the 2nd defendant who is the husband of the petitioner herein is out of India and left to Dubai and therefore he requested his wife to receive the summons and injunction order and accordingly it was served on her. Now the present petition is filed by the wife of the 2nd defendant styling herself as 3rd party to the suit stating that her husband left India on 7-11-2000 and therefore herself and her two minor children are residing in the suit premises and that on 18-11-2000, the Court process server came to her house along with the plaintiff and made enquiries about her husband and that she informed them that he left the country and refused to receive the Court order but the process server forcibly entrusted the process/injunction order and obtained her signature. The plaintiff-1st respondent who was the mother of the 2nd defendant and mother-in-law of the petitioner herein is aware that the 2nd defendant was not in India when the suit was filed and therefore no injunction order can be granted against him and accordingly TA No. 382 of 2000 filed by the plaintiff may be dismissed for want of cause of action. ( 4 ) THE 1st respondent filed counter stating that she is not aware of the 2nd defendant in the suit going out of India. But on 20-10-2000 the 2nd defendant caused interference and threatened to dispossess her from the suit property and therefore she filed the suit and the interlocutory application and the Court granted interim injunction in her favour. ( 5 ) THE petitioner contended that the service of notices, summons and injunction order on her by force by the Court process server under threat is against the rules and procedure contemplated under Order 5, Rule 25 CPC. On the other hand, the learned Counsel for the 1st respondent argued that Order 5, Rule 15 CPC prescribes the procedure for service of Court summons and notices and accordingly the summons and notices were served on the female adult member of the family and in the instant case the petitioner is no other than the wife of respondent No. 2 in the suit and hence the service of summons, notices and orders of the Court are correct and therefore the petition filed by the wife of respondent No. 2 is not maintainable more so in view of the fact that the petitioner has not taken any steps to come on record in the suit to safeguard the interest of her husband. ( 6 ) ON appreciation of the arguments advanced by both the parties, the Court below held that since the petitioner failed to furnish the address of the defendant who is in Dubai to cause service of injunction order and notice on him, the service of summons, notices and injunction order on the petitioner are valid service and there is no infirmity in serving them. Further, the Court cannot recall its own order in the absence of any valid reason. Accordingly the petition was dismissed. Aggrieved by the same, the present revision petition is filed. ( 7 ) SRI P. V. Narayan Rao, the learned Counsel for the petitioner contended that the Court below erred in law in dismissing IA No. 394 of 2001 without properly considering the provisions of Order 5, Rule 25 CPC, which resulted in miscarriage of justice. Aggrieved by the same, the present revision petition is filed. ( 7 ) SRI P. V. Narayan Rao, the learned Counsel for the petitioner contended that the Court below erred in law in dismissing IA No. 394 of 2001 without properly considering the provisions of Order 5, Rule 25 CPC, which resulted in miscarriage of justice. He also contended that the interlocutory application was filed to vacate the interim injunction order inasmuch as no notice is sent to the 2nd defendant in the suit by post at the place of his work at Muskat, Dubai was on the date of institution of the suit, he is out of India. He further contends that there is no allegation in the plaint or in the IA that the defendant has appointed any agent to receive the summons and since the petitioner is not his agent, the order passed by the Court below is illegal and is liable to be set aside. ( 8 ) ON the other hand, the learned Counsel for the respondent submitted that firstly the revision petition is not maintainable at the behest of the wife of the defendant without any authorization and therefore the petition may be rejected without assigning any reason. He next contended that if service of notice, summons injunction order on the wife of the defendant and the order passed on 16-11-2000 and 24-11-2000 are illegal, the defendant alone is the aggrieved party and he is the correct person to approach the Court by making a complaint that the order passed by the Court below is illegal and is liable to be set aside. ( 9 ) TO appreciate the rival contentions of the parties, I have gone through the order passed by the Court below. Order 5, Rule 15 contemplates issue of service of summons. ( 10 ) RULE 15 postulates that wherein in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family whether male or female who is residing with him. ( 11 ) ACCORDING to the learned Counsel for the petitioner, as on the date of service of summons, as the defendant is not residing with his wife in the same house, the service of summons, notices or order of injunction on his wife is not a proper service as the rule itself contemplates that when the defendant is absent from his residence at the time of service of summons is sought to be affected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has not appointed any agent to accept the summons on his behalf, the service may be made on the adult member of the family. As on the date of filing of the suit itself, the defendant is not residing in the house and left to Dubai and therefore the service of summons on the adult member of the family either male or female does not arise. Therefore, the service made in the instant case is non est in the eye of law. ( 12 ) ORDER 5, Rule 25 contemplates that where the defendant is residing out of India and has no agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the Court is situated. ( 13 ) THE service of summons on the defendant who is residing out of India and has no agent in India arise only when the Court is informed that the defendant is not residing in India and that his address is furnished to the Court. Then only the issuance of summons to the defendant who is outside the country arises. As seen from the facts and circumstances, the wife of the defendant has not furnished the address of her husband and therefore the question of service of summons through post on the defendant who is residing outside the country does not arise. Then only the issuance of summons to the defendant who is outside the country arises. As seen from the facts and circumstances, the wife of the defendant has not furnished the address of her husband and therefore the question of service of summons through post on the defendant who is residing outside the country does not arise. The only issue to be decided in this revision is whether at the instance of the wife of the defendant, the Court is entitled to recall the order passed on 16-11-2000 and 24-11-2000 on the ground that service of summons, notice and injunction order on the wife of the 2nd defendant is not proper service as contemplated under Order 5, Rule 15 CPC? ( 14 ) WHEN the petitioner is not a party to the proceedings and she has failed to implead herself as a party defendant either in the IA or in the suit, she has no locus standi to file this petition. The defendant who is the husband of the present petitioner is the only aggrieved party and he has to complain to the Court that the service of notice, summons and injunction order on his wife is not proper as contemplated under Order 5, Rule 15 CPC. Therefore, the lower Court is right in rejecting the petition. Moreover, the petitioner has not stated in her affidavit that she is authorised to file the petition on behalf of her husband. Therefore, she is not an aggrieved party. Accordingly, the revision petition is dismissed. No costs.