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Madhya Pradesh High Court · body

2009 DIGILAW 165 (MP)

JAMSHED BAHADUR v. RASHIDA BEE

2009-02-04

U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellant/defendant No. 1 has directed this appeal under section 100 of the CPC being aggrieved by the judgment and decree dated 21-7-93 passed by the District Judge, Sehore in Civil Regular Appeal No. 24-A/93 confirming the ex parte judgment and decree dated 2-3-93 passed by the iind Civil Judge Class II, Sehore in Civil Original Suit No. 158-A/92, whereby the suit of the respondent for possession of the disputed land and mesne profit, has been decreed ex parte. ( 2. ) THE brief facts giving rise to this appeal are that the respondent herein filed the aforesaid suit for possession and mesne profit against the appellant with respect of the agricultural land bearing Survey No. 371/1/1 area 2 acre, situated in Village Bhaukhedi Tehsil Ichchawar. After filing the suit, the summons was directed against the appellant. The same was not served for two occasions, on which, the respondent filed an application under Order 5 Rule 20 of the CPC for substituted service. The service of the notice by affixture was directed by the Trial Court vide order dated 17-12-92. In compliance of such order, as alleged, in spite of service of the summons, the appellant did not appear on the date fixed before the Trial Court, on which, the case was proceeded ex parte against him on dated 30-1-93. Subsequently, after recording the evidence of respondent No. 1, an ex parte decree was passed by the Trial Court. On filing the appeal by the appellant herein, the same was upheld by the Appellate Court as stated above against which the appellant/defendant has come forward to this court. ( 3. ) THIS appeal was admitted on 14-2-94 on following substantial question of law:- "whether the summons of the suit was served on the present appellant as defendant in the Court below in accordance with law and an ex parte judgment and decree was rightly passed by the Court below. " ( 4. ) THE appellants Counsel, while supporting his case, argued that initially the suit was filed on 18-8-92, on which the summons of the suit was issued to the appellant vide order dated 20-8-92. The summons was received back unserved with a note that appellant had gone out of station, on which, again fresh summons was directed vide order dated 22-9-92. ) THE appellants Counsel, while supporting his case, argued that initially the suit was filed on 18-8-92, on which the summons of the suit was issued to the appellant vide order dated 20-8-92. The summons was received back unserved with a note that appellant had gone out of station, on which, again fresh summons was directed vide order dated 22-9-92. On issuing the same, again it was received unserved with a report that appellant had gone to Bhopal without leaving any information as to when he will come back, on which, again fresh summons for the date 30-3-93, was directed vide order dated 16-12-92. Subsequently, on 17-12-92, without passing any speaking order, the application of the respondent filed under Order 5 Rule 20 of the CPC was allowed and the directions to serve the summons by affixture was given by the Trial Court. In compliance of the same, the summons was issued but without annexing the copy of the plaint which is apparent from the record of the Trial Court. He also said that service of the summons through affixture has not been made in accordance with the provisions enumerated under Order 5 Rule 20 of the CPC as the copy of the summons was not affixed on the conspicuous place of the Court-house, as well as, it was affixed at the correct residence of the appellant, has not been proved by proper report or the affidavit of the Serving Official of the summons or by examining such Official before the Trial Court. In such premises, in view of the provisions of Order 5 Rule 2 and Rule 20 of the CPC, it could not be inferred that the summons was duly served on the appellant and in the lack of service of the summons in accordance with the provisions, the order of the Trial Court proceeding ex parte against the appellant, is not sustainable and, in pursuance of it, the judgment and decree of the Appellate Court is also not sustainable and prayed to answer the aforesaid question accordingly in favour of the appellant and remit back the matter to the Trial Court after setting aside the impugned judgment and decree for fresh adjudication after extending the opportunity of hearing to the parties. ( 5. ) NO one has appeared on behalf of the respondents to respond the aforesaid arguments of the appellant. ( 6. ( 5. ) NO one has appeared on behalf of the respondents to respond the aforesaid arguments of the appellant. ( 6. ) HAVING heard the Counsel, after perusing the record of the Courts below, I am of the considered view that this appeal, deserves to be allowed because of the following reasons. ( 7. ) AFTER filing the suit on 18-8-92, on two occasions, i. e. , 20-8-92 and 22-9-92, the summons of the suit was directed against the appellant but the same was received back unserved as the appellant was out of station and was not available at the mentioned place. It is noted that the summons, issued to the appellant for the date 22-9-92, was not sent for service along with the copy of the plaint. The second summons for the date 16-12-92 was sent for service with a note that the copy of the plaint has already been given earlier. It shows that the copy of the plaint was not sent along with the second summons also. It is also apparent that the summons issued for affixing at the residence of the appellant in compliance of the order dated 17-12-92 was also not sent along with the copy of the plaint for its service. Although, I could not trace-out the aforesaid original summons issued for the date 30-3-93 on which the ex parte proceedings were drawn up against the appellant but the certified copy of such summons having an endorsement of the Process Server and the signature of the witness Yusuf Khan, is available in the record of the Appellate Court. It is apparent from such summons that the copy of the plaint was not sent with this summons also. Besides this, I have not found any proceeding, Panchnama or any paper showing that in compliance of the provisions of Order 5 Rule 20 of the CPC, such summons, along with the copy of the plaint or, without such copy, was affixed on some conspicuous place in the Court-house. ( 8. ) IN the aforesaid circumstances, it is apparent that the mandatory provisions of Order 5 Rule 2 and Rule 20 of the CPC, are not complied with before proceeding ex parte against the appellant. Order 5 Rule 2 of the CPC reads as under:- "2. Copy of plaint annexed to summons.-Every summons shall be accompanied by a copy of the plaint. Order 5 Rule 2 of the CPC reads as under:- "2. Copy of plaint annexed to summons.-Every summons shall be accompanied by a copy of the plaint. " considering such provision, on earlier occasion, in the matter of bhagirath Vs. Bhanwerpal, 1980 JLJ 572 , this Court had held as under:-"8. This brings. . . . . . The purpose of service of a copy of the plaint, or if so permitted a concise statement thereof, is to bring home to the defendant knowledge of a particular suit having been instituted against him so that he may know what is the claim brought by the plaintiffs against him and make-up his mind to defend himself in the case or not. This appears to be the reason why the law makers have made Rule 2 of Order 5 mandatory by using the word shall. Accordingly, the omission of accompaniment of the copy of the plaint or a concise statement thereof, if so permitted, cannot be treated to be a mere irregularity. " Considering the aforesaid cited case, again this question was answered by this Court in the matter of Laxminarayan S. Sharma Vs. Rameshwar R. Khandelwal, AIR 1990 MP 155 , in which it was held as under:- "5. After hearing the Counsel. . . . . . . . . The language of Order 5 Rule 2, CPC is mandatory and whenever summons is issued to a defendant, it must accompany a copy of the plaint or a concise statement. The use of the word shall in Order 5 Rule 2, CPC has made the provision mandatory. It has been held by this Court in 1980 JLJ 572 (supra) and (1980) 2 MPW Notes, Note No. 157 (supra) that when the summons issued did not accompany by a copy of the plaint, no doubt the summon indicated the name of the court, the Suit No. and the next date of hearing, as per form prescribed for the summons, but it is not enough for compliance of order 5 Rule 2, CPC. The law is that along with the summons, a copy of the plaint should be served as it is very much essential because the purpose of service of a copy of the plaint, or if so permitted, of a concise statement thereof, is to bring home to the defendant knowledge of a particular suit having been instituted against him so that he may know what is the claim brought about by the plaintiff against him and he may make up his mind to defend himself in the case or not. This is the reason why the law makers have made Rule 2 of Order 5, CPC mandatory by using the word "shall". Accordingly, if the summons is not issued, it cannot be said that there is a valid service on the defendant and when there is no valid service, even if an ex parte decree is passed on such service, it has to be set aside. . . . . . " It is apparent from the aforesaid cited cases that not sending the copy of the plaint along with the summons is not only an irregularity but it is held to be an illegality and mere on this count, an ex parte order or the decree deserves to be set aside. ( 9. ) APART the above, the mandatory provision of Order 5 Rule 20 of the cpc has also not been complied with for making the effective service of the summons on the appellant. Order 5 Rule 20 reads as under:-20. Substituted service.- " (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. (1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. (2) Effect of substituted service: Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed : where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require. " ( 10. ) CONSIDERING the aforesaid provision being mandatory, the Court was bound to affix the copy of the summons on the conspicuous place in the court-house. Apparently, in the case at hand, the summons was not affixed at such place of the Court house. On this count also, an ex parte decree passed by the Court below is not sustainable and deserves to be set aside as held by this court in the matter of Satish Construction Company, Bhilai Vs. Allahabad Bank, durg, 1999 (1) MPLJ 329 , in which it was held as under :- "5. The provisions are two fold. . . . . . The records of civil suit do not show that the summons sent for publication in the newspaper were ever affixed in some conspicuous place in the Court-house. The trial Court committed breach of the mandatory provisions of order 5 Rule 20 in directing publication of the notice. Firstly, because it did not records its satisfaction and secondly because it did not order affixture of the copy of summons in conspicuous place in the Court-house. It is trite law that service would be deemed to be valid if the order preceding the service is in accordance with law. It is not only the service which is required to be proved but the party relying upon the substituted service has to prove that the order directing substituted service was also in accordance with law. The trial Court, in the opinion of this Court, was not justified in rejecting the application for setting aside ex parte decree. The appeal deserves to and is accordingly allowed. " ( 11. The trial Court, in the opinion of this Court, was not justified in rejecting the application for setting aside ex parte decree. The appeal deserves to and is accordingly allowed. " ( 11. ) ALTHOUGH, the aforesaid cited cases have been decided taking into consideration the provisions of Order 5 Rule 2 and Rule 20 of the CPC along with Order 9 Rule 13 of the CPC but, in any case, the ratio and principle laid down in the aforesaid cases are applicable to the case at hand, and, therefore, the aforesaid question is answered in the manner that summons of the suit was not duly served on the appellant in the Trial Court. Thus, the impugned ex parte judgment and decree are not sustainable. ( 12. ) IN view of the aforesaid by allowing this appeal, the ex parte judgment and decree of the Courts below are hereby set aside and the case is remitted back to the Trial Court with a direction to take the suit on its original number and decide the same afresh after extending an opportunity of hearing in accordance with law. It is further directed that it being an old case, the Trial court shall take an endeavour to conclude the trial expeditiously within a period of twelve months from the date of receiving the copy of this judgment and decree. The appellant is directed to submit such copy before the Trial Court within thirty days from today. In the facts and circumstances of the case there shall be no order as to the cost. Decree be drawn up accordingly. ( 13. ) THE appeal is allowed as indicated above.