Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 98 (JK)

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

2005-04-05

MANSOOR AHMAD MIR

body2005
1. The short controversy involved in this revision petition is, whether the order dated 20th March, 2004 passed by learned Principal District Judge, Anantnag in appeal titled as Ghulam Mohammad Mir & Ors. v. Jalal-ud-din Mir and Ors., is erroneous, illegal and perverse. 2. It appears that a compromise decree has been passed on 29th April, 1987 by the learned District Judge, Anantnag in suit titled Gaffar Mir v. Ghulam Rasool Lone and others. Then a suit has been filed before District Judge, Anantnag on 20.07.1989 for cancellation of the compromise decree which came to be transferred to the court of Sub-Judge, Bijbehara and Sub-Judge, Bijbehara passed exparte decree on Ist March, 1995 and declared the judgment and decree passed by District Judge on 29th April, 1987 (supra) as null and void, ineffective and inoperative. 3. The legal heirs of Gaffar Mir filed an appeal against the said exparte judgment and decree dated 1st March, 1995 before District Judge, Anantnag. The District Judge, Antnag set-aside the exparte judgment and decree vide order dated 20.03.2004, hereinafter referred to as impugned order. 4. Mr. Qayoom argued that the impugned order is illegal because the summons were issued to the legal heirs of Gaffar Mir. The affidavit of process server is on the back of summon. The exparte proceedings have been drawn rightly and accordingly the exparte judgment and decree dated 01.03.1995 is legal one. 5. Learned counsel for the respondents 1 and 2 argued that the exparte proceedings were not drawn legally. The exparte judgment and decree dated Ist march, 1995 passed by Sub Judge Bijbehara is not legal one. The District Judge, Anantnag has passed the impugned order rightly. 6. Considered. The question is, whether the summon issued in terms of Order dated 28.02.1994 on file No. 55/B dated of institution 24.07.1989 titled as Gani Mir and anr v. Mohammad Mir and Ors., was properly served or not and whether the report is verified by the affidavit of the serving officer? 7. 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. 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. Order 5 Rule 17 of CPC reads as under;- "O.5 R.17. Procedure when defendant refused to accept service, or cannot be found.-Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his residence at the time when service 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 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 of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issue, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed." 8. While going through this provision of law, if a party refuses to accept service, the serving officer has to affix copy of the summon on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original summon to the Court with the report stating therein that he has followed the procedure contained in Order 5 Rule 17 CPC. When the summon is returned in terms of Order 5 Rule 17 CPC then Order 5 Rule 19 CPC comes into play and the Court has to follow the procedure contained in Order 5 Rule 19 of CPC. When the summon is returned in terms of Order 5 Rule 17 CPC then Order 5 Rule 19 CPC comes into play and the Court has to follow the procedure contained in Order 5 Rule 19 of CPC. Order 5 Rule 19 reads as under:- "O.5 R.19 Examination of serving officer.-Where a summon is returned under rule 17, the Court shall, if the return under that rule has not 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, and 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 serviced as it thinks fit." 9. This rule mandates that the court has to examine the serving officer if the report of the serving officer is not verified by the affidavit of the serving officer and the Court may also examine the serving officer on oath even if the serving officer has verified the report by affidavit. In case the report has not been verified by the affidavit, the examination of the serving officer is mandatory and also it is the discretion of the court to examine the serving officer on oath even if the report has been so verified. 10. Now applying the test to the case in hand, neither there is affidavit of the serving officer nor the verifying officer has been examined by the court. Thus the exparte judgment and decree passed on 1st March, 1995 has rightly been set aside by the medium of impugned order and case has been remanded back to the trial court. 11. The another aspect of the case, of which one must take note of is, that the summon issued on 28th Feb., 1994 for 17th March, 1994 was notice to the heirs of defendant No. 1 in the application for substitution and not in the suit as defendants. Vide interim order dated 17th March, 1994, learned Sub-Judge granted the application for bringing the legal heirs on record. It was the duty of the trial court to issue summons to the legal heirs brought on record as defendants in the suit. No such summon has been issued. Vide interim order dated 17th March, 1994, learned Sub-Judge granted the application for bringing the legal heirs on record. It was the duty of the trial court to issue summons to the legal heirs brought on record as defendants in the suit. No such summon has been issued. Not to speak of issuance of summon even a whisper has not been made in the interim orders right from 17th March, 1994 till pasing of the exparte judgment and decree dated 1st March, 1995 which suggests non-application of mind. The trial court has not followed the procedure rightly and correctly. Thus the exparte judgment and decree merits to be set aside. 12. Viewed thus the impugned order is well founded and has been rightly passed. The learned Judge has passed well reasoned and speaking order and needs no interference. The learned Principal District Judge has rightly set aside the exparte judgment and decree and has remanded back the case. 13. In the given circumstances the revision petition is dismissed. The Parties present are directed to cause appearance before Sub Judge, Bijbehara on 25th April, 2005. Registry is directed to send back the record to the courts of District Judge, Anantnag and Sub Judge, Bijbehara along with copy of this order.