Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 333 (RAJ)

Shyam Lal v. Ram Charan

2001-02-23

J.C.VERMA

body2001
Honble VERMA, J.–This civil misc. appeal has been filed against the order dated 23.8.1997 passed by the Additional District Judge, Kishangarh Bas, District Alwar by which order the application filed under Order 9 Rule 13 CPC was dismissed. (2). The appellant was the defendant in the suit filed by the plaintiff- respondent for specific performance basing it on the agreement executed by late Balaram. The appellants are the successors of said Balai.am. It was the case of the applicant-defendant that Balaram was never served but still an ex-parte order was passed on 27.10.1993. Late Balaram had moved an application for setting aside the ex-parte decree. Balaram died during the pendency of the said application and the present appellants were substituted in his place. (3). It is the case of the appellant that for the reason that Balaram had never been served in person and only because of the reason that some report was made to the effect that Balaram had refused to accept the service, it cannot be said that it was a proper service. Bharat Singh process server had not appeared ,i@ witness in the witness box. The application for setting aside the ex-parte decree was moved as soon as said Balaram had come to know on 2.2.1994 of such a decree aforesaid. (4). Application under Section 5 of the Limitation Act was filed. The plaintiff had opposed the setting aside of the decree. The ex-parte decree was passed on 27.10.1993. It was the case of the plaintiff in o posing the application that even the counsel had sent a notice dated 14.12.1993 to Balaram which is said to have been received by Nirmal Kumar and even reply to the notice dated 16.12.1993 was sent. So far the service of said Balaram was concerned, a report dated 24.8.1993 was made by the process server that he had gone to village Khanpur for serving Balaram who had refused to accept the notice and that he had pasted the service on the house. (5). Per contra the case of the said Balaram was that he was not in the village at all and that he was living with his son at Bikaner. It was found by the trial court that the contention of said Balaram cannot be accepted to the effect that he had no knowledge, therefore, the application was dismissed on the point of limitation as well 6. It was found by the trial court that the contention of said Balaram cannot be accepted to the effect that he had no knowledge, therefore, the application was dismissed on the point of limitation as well 6. Even though no personal service was made on late Balaram and on the report made by the process server to the effect that he had visited the village and Balaram had refused to accept the notice and he had pasted the notice on t e wag in open place, the trial court should have got the process server produced in the court for the purpose of examination specially when the , appellant defendants were denying the fact that the process server had ever visited the village and had made any such report and even had pasted. (7). Order 5 Rule 10 prescribes the mode of service which is to be made by delivering or tendering a copy thereof signed by the Judge or such officer to the defendant. Rule 12 prescribes that as far as possible service shall be made on defendant in person unless he is an agent empowered to accept service. Rule 15 provides that in case 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 had no agent empowered to accept the service of the summons on his behalf, in such situation the service may be made on any adult member of the family who is residing with him. Rule 17 of Order V prescribes that where the defendant or his agent or such other person refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or there is no agent empowered to accept service of the summons on his behalf nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part. Rule 19 provides that where summons are returned under Rule 17, and if returned under the rule has nor, been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving, officer on oath, or cause him to be so examined by another Court, touching his proceedings, an may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. Rule 19-A provides simultaneous issue of summons for service by post in addition to personal service and Rule 20 provides for substituted service. (8). After going through the material on record and various provisions Of the relevant law in regard to service of summons, it goes without saying that the service on Balaram had not been effected properly. In case as per the report of the process server Balaram had refused to accept service, in such situation, effort should have been made to serve on any adult member as per law and if the necessity so had arisen, it could be . pasted on the conspicuous place. This procedure can only be adopted if there was no likelihood of the person being found on whom the service is to be effected. There is no such report brought to the notice of the court that Balaram was not likely to return or was not likely to be found or that any adult family member had refused to acknowledge the service. It was the duty of the court to have examined the process server on oath in the court which had admittedly not been done in the present case. The provisions of service under Order 5 are safeguards for laudible purpose to avoid any such situation for making any wrong report or to see that a party is not proceeded ex parte. Every effort is to be made to serve the person concerned before making any ex parte service. It is bounded duty of the court to see that the party is served in accordance with law before to proceed ex parte just on receipt of the report of the process server. The court is bound to see that every provision of Order 5 in regard to service is completed and accomplished in letter and spirit before the ex parte proceedings are ordered. (9). The court is bound to see that every provision of Order 5 in regard to service is completed and accomplished in letter and spirit before the ex parte proceedings are ordered. (9). In the present case, the process server on the very first service has reported that he had affixed the service on the outer wall of the house. If there was any refusal on the part of the person concerned and the report having been challenged, such process server should have been examined and also should have been produced for cross examination. In regard to notice dt.14.12.199,3 said to have been sent by the counsel to Balaram, it is stated that it was received by one Nirmal Kumar. There is serious doubt about the service having been effected on the party concerned and as such in my opinion it is a fit case,where the ex parte proceeding ought to have been set aside with the oppor- tunity to the present petitioner defendant to contest the case in accordance with law. (10). For the reasons mentioned above, the impugned order is set aside and the application moved by the petitioner defendant under Order 9 Rule 13 6 accepted. The ex parte decree dated 27.10.1993 is set aside. The case is sent back to the trial court for proceeding in accordance with law with the direction that the efforts should be made to finalise the suit within one year by all means from the date of receipt of a certified copy of this order. The misc. appeal is allowed.