Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 157 (PNJ)

Vijay Kumar v. Madan Lal

2008-01-22

PERMOD KOHLI

body2008
JUDGMENT Permod Kohli. J.:- This order will dispose of RSA Nos.3922 and 3923 of 2002 as both these appeals arise out of a common impugned judgment and decree and involve common facts and questions of law 2. A suit came to be filed by the appellants/plaintiffs in the Court of Civil Judge (Jr. Division), Jalandhar being Civil Suit No.444/99 for possession of land measuring 11 kanals 12 marIas. A decree for possession came to be passed by the trial court on 16.2.2001. Madan Lal, defendant no. 1 in the suit filed an appeal being RCA No.76/2001 and some of the other defendants filed a separate appeal being RCA No.101/2001 in the Court of Additional District Judge, Jalandhar. The appellants herein were arrayed as respondents no.1 to 3 in these appeals. The Lower Appellate Court vide its judgment and decree dated 21.5.2002 accepted the appeals and dismissed the suit filed by the appellants herein. Though the judgment and decree impugned has been challenged on various grounds. However, the principal contention of the learned counsel for the appellants is that the lower appellate court has set aside the judgment of the trial court and allowed the appeals, without even hearing the appellants who are respondents in the appeals. It has been contended that no notice of the appeals was ever served upon the appellants and the appeals came to be decided without hearing the appellants. 3. Learned counsel for the respondents, however, contended that the appellants had the knowledge of the pendency of the appeals. According to the learned counsel for the respondents, after passing of the decree by the trial court, an execution petition was filed and during the pendency of the execution, copy of the order of the appellate court granting stay of the judgment was produced whereupon the execution petition was withdrawn. It is accordingly submitted that since the appellants herein who are respondents in the lower appellate court had the knowledge of the pendency of the appeal, they intentionally evaded the appearance and thus, they cannot be permitted to contend that they were not heard in the appeals. Based upon above submissions, the record of the trial court as also the execution petition was summoned. Based upon above submissions, the record of the trial court as also the execution petition was summoned. From the Execution Petition No.161 of 2001 it appears that during the pendency of the execution, copy of an order dated 20.4.2001 passed in RCA No.76 of 2001 was produced whereupon it appears that Madan Lal filed an appeal in which record of the lower court was summoned and operation of the impugned judgment and decree was stayed. 4. I have perused the record of RCA Nos.76 and 101 of 2001. From the record of RCA No.76/2001, it appears that appeal was registered on 19.2.2001 and posted on 20A.2001 for consideration of the stay matter. On 20A.2001, appeal was admitted and notice of the appeal as well as stay application was directed to be issued to the respondents on filing of process fee etc. and, record of the lower court was also summoned. The lower appellate court also stayed the operation of the judgment and decree till further orders. However, summons could not be issued for want of process fee as is evident from the order dated 31.5.2001. The case was adjourned to 13.8.2001 with a direction to issue fresh notice to respondents. On 13.8.2001 some of the respondents were served, except the appellants herein. It is specifically recorded that these respondents are not served and the counsel requested for adjournment for filing application for effecting service on respondents/appellants herein through Munadi. The case was adjourned for filing application on 20.8.2001. However, no such application was filed till 20.8.2001 and case was adjourned to 25.8.2001 for filing the application. The application was filed on the next date of hearing and the court directed the service on the respondents/appellants herein through Munadi. The case was adjourned to 20.9.2001 where it is recorded that remaining respondents were served through Munadi, but they were not present and proceeded ex-parte. File was accordingly posted for arguments. The case finally came to be decided on 21.5.2002 after certain adjournments. 5. From the perusal of the record of the RCA No.10 of 2001, it appears that the appeal was presented on 7.2.2001 when notice was directed to be issued for 23.5.2001. On the next date of hearing, it was recorded “summons not received back” and the appellant was directed to file process fee etc. for service and the case was fixed on 27.7.2001. On the next date of hearing, it was recorded “summons not received back” and the appellant was directed to file process fee etc. for service and the case was fixed on 27.7.2001. On the adjourned date, it was noticed by the District Judge, Jalandhar that another appeal arising out of the same judgment is pending in the Court of Sh.G.K.Rai, Additional District Judge, Jalandhar which is fixed for 11.8.2001. This appeal was also transferred to the Court of Sh.G.K. Rai, Additional District Judge, Jalandhar for disposal. Appearing parties were directed to appear on 11.8.2001. On 11.8.2001, case was taken up by the Additional District Judge and listed alongwith the connected appeal. Thereafter the appeal came to be decided alongwith the other appeal-RCA No.76 of 2001 on 21.5.2001. At no stage, the respondents were served in this appeal. 6. The sole argument advanced on behalf of the respondents is that the appellants having knowledge of the pendency of the appeal were required to cause their appearance before the lower appellate court and on their failure to appear, they were rightly set ex-parte. It is further contended that they were duly served through Munadi in RCA No.76 of 2001. 7. From the details gathered from the records of the two appeals, it is evident that appellants were allegedly served through Munadi in RCA No.76/2001 whereas they’ were not served at all in RCA No.101/2001. Even in RCA No.76/2001, Munadi was made without there being any record of their evading or non-service. No summon addressed to these respondents (appellants herein) is on record. Summons were either not sent or not received back. The Munadi was ordered at the instance of the appellants before the lower appellate court on their application. However, the fact remains that no serious effort was made by the lower appellate court to serve the respondents by ordinary process or even by registered post. Manner for Service of notice upon CL respondents in appeal is provided under Order VLI Rule 14 of the CPC which reads as under: “14. However, the fact remains that no serious effort was made by the lower appellate court to serve the respondents by ordinary process or even by registered post. Manner for Service of notice upon CL respondents in appeal is provided under Order VLI Rule 14 of the CPC which reads as under: “14. Publication and service of notice of day for hearing appeal (1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the .respondent or on his pleader in the appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with ... reference to the service thereof~ shall apply to the service of such notice. (2) Appellate Court may itself cause notice to be served—Instead of sending the notice to the court from whose decree the appeal is preferred. the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to. (3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal. (4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and field an address for the service in the, court of first instance or has appeared in the appeal. (5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it.” Sub Rule (1) of Rule 14 of Order XLl provides that notice of the appeal is to be served upon the respondent or on his pleader in the appellate Court in the manner provided for the service on a defendant of summons to appear and answer; and al the provisions applicable to such summons, and to proceeding: with reference to the service thereof: shall apply to the service of such notice. The procedure and the manner of service of summons upon defendant is provided under Order V of CPC. The procedure and the manner of service of summons upon defendant is provided under Order V of CPC. It is deemed appropriate to notice relevant extracts of Order V of the CPC:-­ “ORDER V ISSUE AND SERVICE OF SUMMONS ISSUE OF SUMMONS 1. Summons (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to tile the written statement of his defence, if any, on such day within thirty days from the day of institution of the suit as may be specified therein: PROVIDED that no such summons shall be issued when a defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim: xxx xxx xxx 6. Fixing day for appearance of defendant The day under sub-rule (I) of rule 1 shall be fixed with reference to the current business of the court the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day. xxx xxx xxx SERVICE OF SUMMONS 9. Delivery of summons by court (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident with in that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and. where he is such an officer, the summons may be sent to him in such manner as the Court may direct. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and. where he is such an officer, the summons may be sent to him in such manner as the Court may direct. (3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court: PROVIDED that the service summons under this sub­ rule shall be made at the expenses of the plaintiff. 10. Mode of service Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. Provided that in case if the plaintiff so wishes, the Court may serve the summons in the first instance by registered post (acknowledgment due) instead of in the mode of service laid down in this rule] 11. Service on several defendants Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant. 12. Service to be on defendant in person when practicable, or on his agent Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. xxx xxx xxx 15. Where service may be on an adult member of defendant’s family Where in any suit the defendant cannot be found or is absent from his residence and has no agent empowered to accept service of the summons on his behalf service may be made on any adult male member of the family of the defendant who is residing with him. Where service may be on an adult member of defendant’s family Where in any suit the defendant cannot be found or is absent from his residence and has no agent empowered to accept service of the summons on his behalf service may be made on any adult male member of the family of the defendant who is residing with him. Wherein 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 the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Where in any suit the defendant. Explanation: A Servant is not a member of his family within the meaning of this rule. xxx xxx xxx 17. Procedure when defendant refuses to accept service, or cannot be found Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, 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 persona1Jy works for gain, and shall then return the original to the court from which it was issued, 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 whose the house was identified and in whose presence the copy was affixed. xxx xxx xxx 18. Endorsement of time and manner of service The serving officer shall. xxx xxx xxx 18. Endorsement of time and manner of service The serving officer shall. in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on of to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery of tender of the summons. 19. Examination of serving officer Where a summons 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 enquiry 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. 19A. Simultaneous issue of summons for service by post in addition to person service:- (1) The Court shall, in addition to, and simultaneously with, the issue summons for service in the manner provided in rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business of personally works for gain: Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.” Rule 1 of Order V of the CPC provides for issuance of summons on institution of suit/appeal, except where the defendants/respondents have appeared at the time of presentation of the appeal and admitted the claim. Rule 6 of Order V of the CPC requires the Court to fix a day with reference to the current business of the court and summon is to contain the place of residence of the defendant. It is also obligatory upon the Court to fix the time for appearance so as to provide sufficient time to the defendant/respondent to appear and answer on the day so fixed. It is also obligatory upon the Court to fix the time for appearance so as to provide sufficient time to the defendant/respondent to appear and answer on the day so fixed. Rule 9 of Order V of the CPC provides that the summons shall be served through an Officer of the Court upon the defendant/respondent In person or through an agent of the defendants/respondents empowered to accept the service of summons. Sub Rule (3) of Rule 9 provides for service through registered post, acknowledgment due or approved courier service or any other means of transmission of documents (including fax message or electronic mail service) provided by the rules. Under Rule 10, the summons/notice can be served through registered post at the first instance, if plaintiff/appellant so wishes. Rule 11 requires the service of summons on each defendant where there are more defendants/respondents than one. Rule 12 further requires the service upon the person of the defendant or upon his agent empowered to accept service, if any. Rule 15 takes into consideration the absence of the defendants/respondents and in such eventuality, service can be effected upon an adult member of the family. Rule 17 deals with the situation where the defendant/respondent either refuses to accept service or cannot be found. Where the defendant is not found and there is no likelihood of his being found at his residence within the reasonable time, summons can be affixed on the outer door and some conspicuous part of his house in which the defendant ordinarily resides or carries on his business and the original is to be returned to the court issuing the summons with the report endorsed thereon regarding affixation of the copy of the summons and also the circumstances under which affixation was made. It must also contain the name and address of the person by whom the house was identified and in whose presence the copy was affixed. Rule 19 requires the Serving Officer to verify the factum of refusal or affixation by affidavit or he may be examined regarding such refusal or affixation. 8. From the record of RCA No.76/2001 it is found that not even a single notice/summons allegedly sent to the appellants is on record find out that the enable this Court to respondents/appellants herein were evading service. 8. From the record of RCA No.76/2001 it is found that not even a single notice/summons allegedly sent to the appellants is on record find out that the enable this Court to respondents/appellants herein were evading service. Though fee of Rs.40/- for Munadi has been deposited, but there is no report of any Officer on record to demonstrate that Mundai was made at any given time much less the time and place of Munadi and by whom. There is only one endorsement on the side of the interlocutory order dated 20.9.2001 containing that “Sir, Munadi effected”, This endorsement is not even signed by any person and is not supported by any document on record to authenticate the endorsement. From the various provisions of Order V of the CPC noticed here-in-above, it becomes evident that the service of summons/notice upon the party is not a mere formality. The very object of notice/summons is to inform the party concerned regarding institution of a case against him and providing him an opportunity to appear and defend. Various modes and methods prescribed under law are intended to leave no stone unturned to inform the parties. It is for this reason that different modes and methods for serving the defendants/respondents have been provided under Order V of CPC. However, in the present case, none of the effective methods/modes was adopted to serve the appellants herein. The question of service has been dealt with in a casual manner. It may be pertinent to note that the court has not even bothered to look into the record whether Munadi was ever made and the place and time of Munadi where the defendants were residing at the relevant time. On mere endorsement along the order sheet, the court proceeded to decide the case without perusing the service of the appellants herein who were respondents in the case. Rule 6 of Order V of the CPC contains mandatory provision and makes it obligatory for the court to fix the date in the summons/notice to provide sufficient time to the respondents to appear. The summons to be issued shall contain the place and residence of the defendant and he is to be informed of the date fixed for appearance. Rule 6 of Order V of the CPC lays emphasis on the date to be fixed for appearance of the defendant. The summons to be issued shall contain the place and residence of the defendant and he is to be informed of the date fixed for appearance. Rule 6 of Order V of the CPC lays emphasis on the date to be fixed for appearance of the defendant. Therefore, what is necessary is the knowledge of the date fixed in the case which has to be intimated and communicated to the defendant in the manner provided under Order V of the CPC. Mere knowledge to the defendant/respondent of the pendency of the suit/appeal is not sufficient to proceed against him and deny him the opportunity of contesting the case. Even where the not found the procedure provided under Rules 17 and 18 of Order V CPC is to be allowed. Court cannot proceed on the ipsi dixit of the party or even a vague report of the process serving agency. The safeguards provided under Rules 17 and 18 of Order V CPC have to be complied with before a defendant/respondent is denied the opportunity of contesting the case. These provisions have been considered by the Hon’ble Apex Court in the case of Sushil Kumar Sabharwal vs. Gurpreet Singh and others, (2002) 5 Supreme Court Cases 377 wherein following observations have been made:­ “8. We find several infirmities and lapses on the part of the process server. Firstly. on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process server to witness the proceedings and be a party to the procedure of the service of summons but to say that there was no witness available on the spot is a statement which can be accepted only with a pinch of salt. Incidentally, we may state that though the date of appearance was 23.2.1993 the summons is said to have been tendered on 22.2.1993 i.e. just a day before the date of hearing." 9. Above observations were made by the Hon’ble Apex Court after taking note of Rules 17 and 18 of Order V of the CPC. However, in the present case, there is no report of the process serving agency or of any other Officer who allegedly made Munadi and thus, there was no occasion for the Court to have simply accepted an endorsement on the order sheet that Munadi has been conducted. There has been violation of principle of natural justice and contravention of the statutory provisions of the Civil Procedure Code in deciding the appeals by the lower appellate court which has caused injustice to the respondents/appellants herein. 10. In view of the above, these appeals i.e. RSA No.3922 of 2002 and RSA No.3923 of 2002 are allowed. Impugned judgments and decrees dated 21.5.2002 passed by the Additional District Judge, Jalandhar are hereby set aside. The cases are remanded back to the Additional District Judge, Jalandhar for fresh decision on the appeals. The parties are directed to appear before the Additional District Judge. Jalandhar on 3.3.2008 at 10.00 a.m. A copy of this order be placed on record of RSA No.3923 of 2002. ————————