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2005 DIGILAW 174 (JK)

Jalal-ud-Din Mir v. Gh. Mohd. Mir

2005-06-09

MANSOOR AHMAD MIR

body2005
1. The order dated 05th April, 2005 passed by this Court in Civil Revision No. 60 has given birth to this review petition. It is averred that Order 5 Rule 19 CPC is not mandatory in nature but is directory in terms of the judgment passed by the Hon™ble Patna High Court in case Mali Ram Sharma v. Gayatri Devi reported in AIR 1985 Patna 116 and also there was no need to issue fresh notice after legal heirs of deceased are brought on record as defendants. 2. Heard. Considered. This court is of the considered view that this review petition merits to be dismissed on admission stage without issuing notice to other-side. 3. The trial court while drawing exparte proceedings has categorically mentioned in the order dated 17th March, 1994 that the summon contain the affidavit of the Process Server. The said summon is exhibited as EXDW/4. While examining the said summon no such affidavit of the Process Server is with summon. Accordingly, this Court has observed as under;- In terms of interim order dated 17th March, 1994, the Process Server has reported on the back of summon that legal heirs of respondent No.1 have refused to accept notice and the summon contains the affidavit of the process server. The summon issued on 28th Feb., 1994 EXDW/4 nowhere discloses that it is accompanied by affidavit of the serving officer. No such affidavit is on the file. Thus the interim order dated 17th March, 1994 is not correct to that extent.� 4. Rule 19 of Order 5 CPC is mandatory in nature. It is mandatory on the part of the Process Server to verify the report by affidavit and in case the serving officer has not verified the report by affidavit then it is obligatory on the part of the Court to examine the said Process Server. 5. This court in case Krishan Lal Vs. Mohinder Nath reported in 1990 KLJ 26 has held that the compliance of the provision of Order 5 Rule 19 CPC is mandatory. It is profitable to reproduce relevant portion of the said judgment herein;- The compliance of the provisions of Or.5 R.19 CPC is mandatory and cannot be dispensed with by the court deciding to proceed ex-parte. It was held in State of J&K Vs. It is profitable to reproduce relevant portion of the said judgment herein;- The compliance of the provisions of Or.5 R.19 CPC is mandatory and cannot be dispensed with by the court deciding to proceed ex-parte. It was held in State of J&K Vs. Haji Wali Mohammad reported in AIR 1972:SC:2538: that in a case where no proof was adduced by way of affidavit of the process server or other officer that attempt was made to serve the notice personally, the provisions of O.5 R.19 CPC would be deemed to have not been complied with and notice held not in accordance with law. Mere averment that notice had been affixed on certain date did not dispense with the requirement of the statutory provision.� 6. This court has also observed in case Abdul Rashid Mir Vs. State of J&K and others reported in 1986 SLJ321 as under;- 1. A temporary injunction seems to have been obtained by the petitioner herein from the court of Second Additional Munsiff, Srinagar on 28-11-1985. From the perusal of the record it appears that a notice was issued to the Director, School Education in the application for grant of ad interim relief and at the back of the said notice process serve had reported that Director School Education has refused service. This report is dated 25-11-1985. The report of the process server has not been witnessed by any witness. Therefore on this report the trial court was not required to act. However the trial court has taken this report into consideration and held that despite notice, Director School Education has failed to appear, thereafter passed the order of ad-interim injunction staying the transfer of the petitioner. 4. Mr. Qayoom submits that rightly or wrongly, the order was passed by the trial court and that should be maintained. We do not agree with the submissions. The order of the trial court is passed after notice. Therefore, notice should have been served duly Service of notice dated 25-11-1985 is not due service and the trial court has misdirected itself by pronouncing service is due service. Had the trial court cared to go through order 5 of the CPC it would never have declared the service as due service. At least process server should have been examined before this notice was acted upon. That was not done. Had the trial court cared to go through order 5 of the CPC it would never have declared the service as due service. At least process server should have been examined before this notice was acted upon. That was not done. Therefore, the trial court order also seems to have been issued in violation of the requirements of law.� 7. The facts mentioned in the judgment of Hon™ble Patna High Court reported in AIR 1985 Patna 116 are different. In the said case the serving officer had filed the affidavit but not as per the Schedule. 8. While going through the application, no error is apparent on the face of the record. Accordingly this review petition merits dismissal which is hereby dismissed.