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Madhya Pradesh High Court · body

2002 DIGILAW 1012 (MP)

Shakuntala Singh v. Basant Kumar Thakur

2002-11-12

K.K.LAHOTI

body2002
ORDER K.K. Lahoti, J. 1. Appellant has filed present appeal challenging the order passed by the Court beiow by which her application under Order 9, Rule 13, Civil Procedure Code was rejected. 2. Respondent Basant Kumar filed a suit bearing No. 7A/1994 on 7-3-1994. This suit was decided ex parte on 26-7-1994. The contention of the appellant is that summon was not served in the suit. On the other hand the respondent submits that appellant was duly served through her husband and was having knowledge of the suit. Another summon was issued in the name of mother of the applicant Smt. Girija Bai (Ex. D. 3), on which husband of appellant made an endorsement that she resides at Jhansi. This endorsement was made on 24-3-1994 and on the same day the husband of the appellant refused to receive the summon Ex. D. 3, issued to appellant and because of which ex parte order was passed against the appellant. The application filed by the appellant was also barred by time. 3. Learned counsel for the appellant submits:- (a) that no summon was served on the appellant. (b) the procedure on refusal of summon Ex. D. 4 not followed as required in the Rules 17, 18 and 19 of Order 5, Civil Procedure Code. (c) there is no affidavit of serving officer and Court has not recorded the statement of serving officer on oath. Respondent has also not examined him in this regard. 4. Relying on judgment of this Court in case of Baijnath vs. Harishankar, 2001(2) MPLJ 142 . Learned counsel for the appellant submits that ex parte decree passed in the case deserves to be set aside. The appellant got knowledge of the decree only when husband of the applicant became aware of ex parte decree on 30-3-1998. Thereafter she applied for certified copy on the same day which was received by her on 6-6-1998. On 6-6-1998 there was summer vacation and on the day when the Court open on 26-6-1998 this application was filed which is within time. The provisions of Order 9, Rule 13, Civil Procedure Code are not penal in nature. Reliance is placed on the judgment of Apex Court in case of G. P. Shrivastava vs. R.K. Raizada and others. 2000)3 SCC 54. 5. The provisions of Order 9, Rule 13, Civil Procedure Code are not penal in nature. Reliance is placed on the judgment of Apex Court in case of G. P. Shrivastava vs. R.K. Raizada and others. 2000)3 SCC 54. 5. Learned counsel for the respondent submits that:- (a) summons were duly served on appellant, (b) the appellant was having knowledge in respect of pendency of the suit and in view of second proviso Rule, 13 Order 9, merely on the ground of irregularity in the service of summon the ex parte decree cannot be set aside, (c) the application was barred by time. On 30-3-1998 appellant was having knowledge of the ex parte decree. She ought to have filed an application for setting aside ex parte decree within 30 days. There was no necessity to await the certified copy of the judgment and decree. The application can be filed without certified copy of the decree so the application filed by the appellant was barred by time. 6. Considering the aforesaid contention raised by the parties, firstly the summon Ex.D. 4 seen. From the endorsement of the Ex.D. 4 it appears that the process server tried to serve the summon on Govind Narayan Singh, and on his refusal the summon was affixed on the house. But, this service has not been verified by the process server by affidavit nor he was examined in the case by the trial Court. Apart from this when the service was seriously disputed by the appellant in the trial Court it was obligatory on the part of respondent to examine process server who has affected the service. In absence of such, service cannot be held to be valid, it is contrary to the provisions of Rules 17, 19 of Order 5, Civil Procedure Code. This Court in the case of Baijnath vs. Harishankar reported in 2001 (2) MPLJ 142 has considered this question and held:- 19. In Kunja vs. Lalaram and others. 1987 MPLJ 746 , it has been laid down that the provisions of Rule 19 of Order 5 of the Code are mandatory and cast a duty on the Court to make a judicial order while accepting service effected in the manner prescribed under Rule 17 of Order 5 of the Code. It has further been observed that non-compliance of Order 5, Rule 19 will cause serious injustice to the defendant. It has further been observed that non-compliance of Order 5, Rule 19 will cause serious injustice to the defendant. Bombay High Court in Baburao Soma Bhoi vs. Abdul Raheman Abdul Rajjak Khatik, 2000 (1) Mh.L.J. 481 : (1999) AIHC 3725, has observed that the return of summons should be accompanied by the affidavit of the process server, which is in Form 11 of the First Schedule of the Appendix "B" of the Code. If the return report of the process server is without an affidavit, the Court has to record the statement of process server and after making further enquiry, the Court should hold that the summons has been duly served or not. 20. In the instant case as noticed above, the trial Court without examining the process server, directed that the appellant/defendant No. 1 be proceeded against ex parte; even though the report of the process server was not accompanied with his affidavit. Obviously such a course was not permissible. 24. In the instant case, since the trial Court has not made any enquiry regarding the service of summons on the appellant as also regarding the refusal of summons reported by serving officer, the mandatory requirements of Order 5, Rule 19 of the Code have not been duly complied with. The approach of the trial Court during trial as also while holding the enquiry on the application of the appellant under Order 9, Rule 13, Civil Procedure Code, for setting aside ex parte judgment and decree passed against him, appears to be rather casual and negligent, as has been pointed out above. Moreover, the cause of delay shown by the appellant is belated filing of the said application under Order 9, Rule 13 read with section 151 of the Code also deserves acceptance. 7. In view of the aforesaid, the trial Court erred in proceeding ex parte without following the procedure as envisaged in Rule 17 and 19 of Order 5 and ex parte order passed in civil suit deserves to be asset aside only on this ground. 8. Another contention of the respondent is that present application was barred by time. On 30-3-1998 husband of the appellant got knowledge of the summon but has waited upto 22-6-1998 while there was no necessity to file certified copy of the judgment and decree. 8. Another contention of the respondent is that present application was barred by time. On 30-3-1998 husband of the appellant got knowledge of the summon but has waited upto 22-6-1998 while there was no necessity to file certified copy of the judgment and decree. It is true that there is no necessity of filing of certified copy of the judgment and decree in an application to set aside ex parte decree, but appellant has applied for the certified copy and has waited till the certified copy is received from the Court and thereafter applied for setting aside ex parte decree then her application cannot be rejected merely on the ground of limitation. Even if the certified copy is not required then appellant may need to go through the ex parte judgment and decree to know the contents of it. Appellant has spent some time in obtaining certified copy then it is sufficient ground to condone the delay which occurred because of it, but the application cannot be rejected merely on this ground. The Apex Court in the case of Additional Collector of Custom, Calcutta and another vs. Best and Company, AIR 1966 SC 1713 , has considered this and held:- 12. In Imperial Bucket Co. vs. Smt. Bhagwati Basak, AIR 1954 Cal 520 there are however observations to the effect that an appellant will have the benefit of section 12 in a case where lie has annexed to the memorandum of appeal a certified copy of the judgment appealed from even though by the statute under which the appeal is filed, no certified copy of the order appealed from is required. This decision does not necessarily mean that where a copy is applied for and obtained but not annexed the time in obtaining it was for a thing not requisite. As the Privy Council observed, a party might like to examine the judgment or the decree or the Order before he challenged it in a higher forum. Though the judgment states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time where it is not annexed. As the Privy Council observed, a party might like to examine the judgment or the decree or the Order before he challenged it in a higher forum. Though the judgment states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time where it is not annexed. But in Gangaram vs. Beharilal, AIR 1952 Bho 39 a view has been taken that Sub-sections (2) and (3) of section 12 would only be attracted when a copy of the judgment or decree or order appealed from accompanies the application for review. This view is not in consonance with and in fact is contrary to the interpretation of section 12 by the Privy Council in Surty's case, 55 lnd. App. 161: AIR 1928 PC. 103 (supra) and is therefore unwarranted. The same must also be said of Abdul Aziz vs. Jai Ram, AIR 1951 HP 67. As observed by the Privy-Council in Surty's case, 55 lnd App 161: AIR 1928 PC 103 (supra) the view of the High Courts of Bombay, Calcutta and Allahabad as expressed in Hajia Hassum vs. Noor Mohammad, ILR (1904) 28 Bom 643, Kalipada Karmakar vs. Shekharbasini Dasya, 24 Cal LJ 235: AIR 1917 Cal 320 and Waid Ali Shah vs. Nawal Kishore, ILR (1895) All 213 was that an appellant was entitled to exclusion of time in obtaining a copy of a judgment and decree even though the rules permit him to file the appeal without annexing such a copy. The view contended for on behalf of the respondents is thus not only contrary to the decision of the Privy Council but if accepted would lead to a somewhat surprising result, viz. that if the petitioners had waited till the copy of the order was furnished to them, their application would have been in time or if they had withdrawn their application and filed a fresh one or amended their application and annexed the copy of the order such a fresh application, or such amended application which in its unamended form was in their view time barred would have been well within the period of limitation. In our view such a result is not to be contemplated. In our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of section 12(2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under section 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would-be appellant but do not govern the positive direction contained in section 12. The High Court in this view, therefore, was not right in dismissing the petitioners' application for leave to appeal on the ground that it was barred by limitation. 9. In view of the above if appellant has awaited till she gets certified copy of judgment and decree, her application cannot be rejected merely on the ground of limitation. Applicant has applied for certified copy of the judgment and decree on 30-3-1998 which was delivered on 5-6-1998, and it was filed along with the present application. In the circumstances there is justification in not filing application within 30 days from 30-3-1998 and appellant has made out sufficient ground in this regard. 10. The Apex Court in the case of G. P. Shrivastava vs. R. K. Raizada (supra) has considered the scope of Order 9, Rule 13, Civil Procedure Code whereas the Apex Court held:- 7.... The Words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9, Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case .............\ 11. Learned counsel for the appellant has filed photocopy of the judgment passed in C. S. No. 312-A/1995 dated 30-1-1996 in which issue No. 4 was whether Basant Kumar is son of Munnalal from Rampyari Bai. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case .............\ 11. Learned counsel for the appellant has filed photocopy of the judgment passed in C. S. No. 312-A/1995 dated 30-1-1996 in which issue No. 4 was whether Basant Kumar is son of Munnalal from Rampyari Bai. This issue was decided against Basant Kumar and it is held in that case that he is not son of Mannulal. The same question was involved in the present case in which ex parte decree was passed. Though, the learned counsel for the respondent submits that the judgment and decree passed in C.S. No. 312-A/1995 dated 30-1-1996 is under challenge in First Appeal before this Court. But, considering the aforesaid, it appears cannot be said that appellant was not interested in contesting the suit and has wilfully suffered ex parte decree against her. In view of the aforesaid legal position the lower Court erred in rejecting the application filed by the appellant. The order passed by IXth Additional District Judge, Jabalpur in MJC No. 28/1999 dated 8-5-2001, is set aside. Application filed by the appellant under Order 9, Rule 13, Civil Procedure Code is allowed and ex parte decree passed in C. S. No. 7-A/1994 dated 26-7-1994 is set aside. As all the parties are present before this Court, in the circumstances they are directed to appear before the trial Court on 16-12-2002. The trial Court will proceed in the C. S. No. 7-A/1994 and will allow the applicant to file written statement and will proceed in the suit in accordance with law. No order as to costs.