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2010 DIGILAW 1395 (RAJ)

Harbhajan Singh v. L. Rs. of Gardhara

2010-08-05

SANGEET LODHA

body2010
JUDGMENT : Hon'ble LODHA, .J.-This appeal is directed against order dated 16.9.95 passed by the Additional District Judge, Raisinghnagar in Civil Misc. Case No. 67/93, whereby an application preferred by the appellants for setting aside ex-parte judgment and decree dated 29.3.89 passed in Civil Suit No. 3/83, stands rejected. 2. In the year 1983, the respondent/plaintiff filed a suit for specific performance of the contract against the appellants/defendants on the basis of an agreement to sell dated 29.3.79 alleged to have been executed by Shri Kewal Singh, the power of attorney holder of the appellants/defendants in favour of the respondent/plaintiff Gardhara Singh (since deceased) represented by his legal representatives, in respect of 24-1/2 big has land comprising murabba No.26 inchak 2 GB A, Tehsil Anoopgarh. The summons issued by the court could not be served in ordinary course and therefore, on an application preferred on behalf of the respondent/plaintiff, the service upon the appellants/defendants was directed to be effected by way of substituted service Le. by publication of the summon in the daily newspaper "Dainik Tribune" Hindi edition, published at Chandigarh. On publication of the summon in the "Dainik Tribune" as directed by the Court, vide order dated 15.1.88, the service upon the appellants/defendants was treated to be complete and since nobody appeared on their behalf when the matter was called out, the ex parte proceedings were ordered against them. Ultimately, the suit was decreed ex parte vide judgment and decree dated 29.3.89. 3. Aggrieved thereby, the appellants/defendants filed an application under Order IX Rule 13, CPC for setting aside the ex parte decree. It was stated therein that at the relevant time, when the suit was filed, the appellant/defendant Harbhajan Singh was residing at village Rodala, Tehsil Ajnala, district Amritsar and appellant/defendant Amritpal Singh was in defence service, however, the summons were not served upon them personally. The appellants/defendants submitted that in the suit filed, Miss Rana, the daughter of Harbhajan Singh was also impleaded as defendant in the suit who at the relevant time was studying in Medical College at Amritsar and was staying in the hostel of the College. It was contended that no efforts were made on behalf of the respondent/plaintiff to find out the correct addresses of the appellants/defendants and the summons were sent by the Court for service in ordinary course only once. It was contended that no efforts were made on behalf of the respondent/plaintiff to find out the correct addresses of the appellants/defendants and the summons were sent by the Court for service in ordinary course only once. It was stated that even the court directed for service being effected by registered post but the requisites were not filed by the respondent/plaintiff. It was further stated that earlier court directed for publication of the notice in "Punjab Kesari" which was published in English and Gurumukhi but the respondent/plaintiff refused to get the notice published in the said newspaper. It was stated that the defendant Amritpal Singh was employed in Indian Army and therefore, the service upon him could have been effected in ordinary course in accordance with law but no efforts whatsoever was made in this regard by the respondent/plaintiff. The appellant/defendants pleaded that they have very little knowledge of language Hindi and used to read the newspapers which are published in either Punjabi or English. It was contended that the ex parte proceedings ordered against them by effecting substituted service is illegal and violative of principles of natural justice. 4. The application was contested by the respondent/plaintiff stating that the summons were sent on the permanent addresses of the appellants/defendants but they were avoiding service and therefore, the same were rightly served upon them by way of substituted service. It was stated that the respondent/plaintiff never refused to get the summon published in the newspaper "Punjab Kesari", to the contrary, the communications sent by the court to the office of the said newspaper were not responded and therefore, ordered for publication of the summon in the newspaper "Dainik Tribune" was passed by the court which cannot be faulted with. The averments made regarding the employment of the defendant Amritpal Singh in the Indian Army were simply denied by the respondent/plaintiff. 5. In support of the appellants/defendants, Harbhajan Singh (AW.1), got himself examined as witness whereas on behalf of the respondents, Gardhara Singh (NAW 1) and Kewal Singh (NAW 2), were examined by the court below. 6. After considering the rival submissions, the court below observed that the summon sent to the defendant Harbhajan Singh by registered A/d post lying in Part D of the record, stands wedded out. 6. After considering the rival submissions, the court below observed that the summon sent to the defendant Harbhajan Singh by registered A/d post lying in Part D of the record, stands wedded out. The court observed that "Dainik Tribune" is published from Chandigarh and the defendant Harbhajan Singh has disclosed his registered address of Chandigarh and he has admitted in his statement that in the year 1986, he was residing at Chandigarh and therefore, he cannot be permitted to contend that the substituted service effected by publication of the summon in "Dainik Tribune" cannot be treated to be sufficient. The court, observed that the substituted service can always be effected by publication of the summon in a newspaper having circulation in the area wherein the defendant resides and therefore, it cannot be said that the service upon the appellant/defendants has not been effected sufficiently. The certificate regarding the employment of Amritpal Singh in the defece service was disbelieved by the court on the ground that neither the said certificate has been produced by Amritpal Singh nor the commanding officer issuing the certificate has been produced before the court. The court observed that the defendant Harbhajan Singh had knowledge of the suit tiled through his maternal uncle Kewal Singh who was examined as witness on behalf of the respondent/plaintiff and there is no explanation on record for inordinate delay of four years five months and 24 days in tiling the application for setting aside the ex parte decree. Accordingly, the application preferred has been rejected by the court below by order impugned. 7. I have heard the learned counsel for the parties. 8. Learned counsel for the appellants/defendants contended under Order V Rule 20 before issuing any order for substituted service, it is absolutely necessary that the court should be satisfied that there is reason to believe that the defendants keeping out of the way for the purpose of avoiding service or that for' any reason, the summons could not be served in ordinary way. Drawing the attention of this Court to the proceedings of the trial Court, learned counsel urged that there is nothing on record to show that the appellants/defendants were avoiding the service; Learned counsel submitted that the court below issued directions for substituted service only noticing the fact that the summons of the defendants are not being returned for quite a long time and since, the plaintiff desired to get the summon published in the newspaper "Punjab Kesari". Learned counsel submitted that the order passed by the court directing substituted service without there being any material on record, showing that the appellants/defendants were avoiding the service is ex facie illegal. Learned counsel submitted that the respondent/plaintiff deliberately did not supply the correct addresses of the appellant/defendant Amritpal Singh and the defendant Miss Rana and therefore, in absence of any efforts made by the respondent/plaintiff to get the summons served on the appellants/defendants in ordinary way, the court below was not justified in straight away directing service of the summons by way of substituted service. Learned counsel submitted that it is not in dispute that defendant Amritpal Singh was in employment of India Army and therefore, the service of the summons upon him was required to be made in conformity with the provisions of the Indian Soldiers (Litigation) Act, 1925 and Order V Rule 28 of CPC but, no efforts were made by the respondent/plaintiff in this regard. Learned counsel submitted that the court below has seriously erred in disbelieving the certificate produced regarding the employment of defendant Amritpal Singh in the Indian Army on the ground that the Commanding Officer who has issued the certificate has not been produced before the court. Learned counsel submitted that the court below has erred in ignoring the fact that the appellant/defendant Harbhajan Singh at the relevant time was residing at village Rodala, district Amritsar. Learned counsel submitted that the court below has seriously erred in attributing knowledge of the proceedings to the appellant/defendant Harbhajan Singh through his maternal uncle Kewal Singh who alleged to have executed the agreement to sell in question as power of attorney of Harbhajan Singh. Learned counsel submitted that it has been admitted in unequivocal terms by Shri Kewal Singh that he does not possess the copy of the power of attorney alleged to have been executed by Harbhajan Singh in his favour. Learned counsel submitted that it has been admitted in unequivocal terms by Shri Kewal Singh that he does not possess the copy of the power of attorney alleged to have been executed by Harbhajan Singh in his favour. Learned counsel submitted that the appellant/defendant is questioning the power of attorney itself and alleging the collusion between the respondent/plaintiff Gardhara Singh and Kewal Singh therefore, the question of presumption of knowledge of the proceedings to the appellant/defendant on the basis of the relationship of the appellant/defendant with Kewal Singh, does not arise. Accordingly, it is submitted by the learned counsel that the court below has seriously erred in rejecting the application preferred by the appellants/defendants for setting aside the ex parte decree. 9. On the other hand, learned counsel appearing for the respondent/plaintiff submitted that the appellants/defendants have not disputed the knowledge of the proceedings, they have only pleaded insufficiency of the service. Relying upon second proviso to Order IX Rule 13 of CPC, learned counsel submitted that no court can set aside a decree passed ex parte merely on the ground that there has been an irregularity in service of the summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Learned counsel urged that in view of the aforesaid proviso, the court cannot exercise the discretion in favour of a person who had knowledge of the proceedings pending but did not appear before the court to defend the same. Learned counsel submitted that at the relevant time, the appellants/defendants were residing at Chandigarh and therefore, the substituted service effected by publication of the summon in "Dainik Tribune" having circulation within the territory of Chandigarh constitutes sufficient service and the appellants/defendants cannot be permitted to question the same on any ground whatsoever. Accordingly, it is submitted by the learned counsel that the appeal preferred deserves to be dismissed. 10. I have, considered the rival submissions, perused the material on record so also the record of the courts below requisitioned by this Court. 11. Accordingly, it is submitted by the learned counsel that the appeal preferred deserves to be dismissed. 10. I have, considered the rival submissions, perused the material on record so also the record of the courts below requisitioned by this Court. 11. Precisely, the questions which come for consideration of this court are firstly, as to whether the substituted service by way of publication of the summon in the newspaper in terms of Order V Rule 20 of CPC was ordered by the court below without exhausting the other modes of service and secondly, whether on the facts and in the circumstances, knowledge of pendency of the suit as envisaged by second proviso to Order IX Rule 13 was attributable to the appellants/defendants? 12. To appreciate the controversy involved in correct perspective, it will be appropriate to first refer the provisions of Order V Rule 20 of CPC, which read 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 know to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. 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." 13. (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." 13. A bare perusal of the said provisions, make it abundantly clear that the mode of substituted service can be resorted to only when the court is satisfied that there is reason to believe that the defendant is keeping out of way for the purpose of avoiding service or that for any other reason, the summons cannot be served in ordinary way. To put it in other words, the personal service of summons in ordinary way is a rule and the substituted service is an exception. Therefore, before passing any order for substituted service on the basis of the material on record, the court must be satisfied that the conditions stipulated in Order V Rule 20 of CPC, noticed above, exists. However, there is presumption that service substituted by the order of the court shall be as effectual as it had been made on the defendant personally. 14. Adverting to the facts of the present case, it is to be noticed that the suit for specific performance of the contract was filed by the plaintiff on 5.4.83. The suit was directed to be registered and the defendants were ordered to be summoned vide order dated 15.4.83. The summons were issued on 23.4.83, however, the same were not served and therefore, vide order dated 15.7.83, fresh summons drawn in Gurumukhi script were ordered to be issued in ordinary course so also by registered post. However, no steps were taken on behalf of the plaintiff to file the process fee and summons and therefore, on 2.9.83, three days time was granted to the plaintiff to take steps in terms of earlier order dated 15.7.83. On the next date, it was noticed that the summons were not issued and therefore, it was directed that the defendants may be summoned afresh. However, nothing is recorded in the order that why the summons were returned unserved. On the next date i.e. 3.12.83, the court observed that the defendants are not served therefore, fresh summons may he issued. On 6.1.84, it was noticed that the summons are not returned therefore, return of the summons may be awaited. However, nothing is recorded in the order that why the summons were returned unserved. On the next date i.e. 3.12.83, the court observed that the defendants are not served therefore, fresh summons may he issued. On 6.1.84, it was noticed that the summons are not returned therefore, return of the summons may be awaited. Again on 21.7.84, the summons were not returned, however, the Presiding Officer was on leave, therefore, the matter was adjourned. On the next date i.e. 24.2.84, the court noticed that the plaintiff has not filed the PF & summons in terms of order dated 3.12.83 and accordingly, three days time was granted to file the PF & summons with correct addresses for service upon the defendants in ordinary way so also by registered post, if so desire by the counsel for the plaintiff. Again on 23.3.84, it is recorded that the summons are not returned and therefore, fresh summons were ordered to be issued. Strangely enough, in the margin of the order sheet dated 23.3.84, it has been noted that Regd. In order sheet dated 18.5.04, the court observed that the summons of the defendants are not being returned for the long time and since, counsel for the defendant has made an application for service upon the respondents by publication of the summon in the newspaper "Punjab Kesari" and therefore, on depositing the amount of expenses the summon may be get published in the newspaper. Thus, it appears that the office report with regard to the return of the notices in the margin of order sheet dated 23.3.84 has been made subsequent to drawing of the order sheet dated 18.5.84 or acting in a casual manner, the same was not even noticed by the Court while passing further orders for effecting service upon the defendants. Nothing is available on record to show as to whether the notices were returned served or unserved and if the same were received unserved, the reason therefor. 15. Be that as it may, on 13.12.84, the matter was adjourned awaiting reply from the office of newspaper "Punjab Kesari" in respect of the expenses of publication of summon. On 18.2.85, the plaintiff desired to sent the summons by registered post and therefore, it was ordered that the expenses may be deposited for the purpose. 15. Be that as it may, on 13.12.84, the matter was adjourned awaiting reply from the office of newspaper "Punjab Kesari" in respect of the expenses of publication of summon. On 18.2.85, the plaintiff desired to sent the summons by registered post and therefore, it was ordered that the expenses may be deposited for the purpose. Thereafter, during the period 4.4.85 to 30.11.85, the matter was adjourned six times inasmuch as, the requisites were not filed on behalf of the plaintiff. 16. It appears that on 18.1.86, the envelopes were filed on behalf of the plaintiff for sending the summons by registered post and in the meantime, a communication was received from the office of "Punjab Kesari" informing the expenses of the publication as Rs. 450/-. But later, the demand was raised for Rs. 525/- more which the plaintiff declined to deposit and therefore, vide order dated 18.10.86, it was directed that the summon may be got published in the newspaper "Dainik Tribune." 17. It is pertinent to note that the application praying for substituted service upon the defendants was filed on behalf of the plaintiff stating therein that despite information regarding the suit filed, the defendants are not appearing and are trying to delay the proceedings of the suit, therefore, the plaintiff desirous to get the defendants served by publication in the newspaper "Punjab Kesari": Indisputably, the summons on the defendants were not duly served and therefore, there could not have been any presumption regarding information to them about the pendency of the suit. The application preferred does not disclose as to what efforts were made to serve the notice upon the defendants personally. That apart, no grounds were set forth in the application as to why the personal service could not be effected. 18. Further, a perusal of order dated 18.5.84 reveals that the court directed for substituted service upon the defendants by way of publication in the newspaper "Punjab Kesari" on mere asking of the plaintiff without recording any finding as to in what circumstances, the defendants could not be served in ordinary course. A perusal of the proceedings of the suit further reveals that at no stage of the proceedings, it is noticed by the Court that the defendants were avoiding the service. A perusal of the proceedings of the suit further reveals that at no stage of the proceedings, it is noticed by the Court that the defendants were avoiding the service. To say the least, the manner in which the court -has dealt with the entire matter with regard to the service upon the defendants and has issued directions for substituted service, without even recording its satisfaction that the defendants cannot be served personally, does not inspire confidence and therefore, cannot be countenanced by this court. Needless to say that the substituted service being presumption in nature should not be resorted to by the court unless on the basis of the material on record, it stands satisfied that the defendants are avoiding the service or for any other reason, the summons cannot be served upon them personally in ordinary way. On the facts and in the circumstances of the present case, the court below could not have proceeded to pass an order for substituted service in casual manner solely on the basis of the plaintiffs desire to serve the defendants by substituted service. 19. In view of the discussion above, in considered opinion of this Court, the court below has committed a gross error in directing the substituted service upon the defendants without there being the reasonable efforts to get the defendants served in ordinary way and without recording its satisfaction that the defendants cannot be served personally in the ordinary way and therefore, the service upon the respondents cannot be considered to be sufficient and in accordance with law. 20. Coming to the question as to whether the defendants has knowledge about the suit proceedings and therefore, they are not entitled to pray for setting aside of the ex parte decree keeping in view the mandate of second proviso to Order IX Rule 13 of CPC, it is to be noticed that the knowledge of the proceedings attributed to the defendants is not based on any material on record. The Presumption of the knowledge drawn by the court below on account of the relationship of the defendant Harbhajan Singh and Kewal Singh who has appeared as witness on behalf of Harbhajan Singh is also not sustainable in eye of law, particularly when, the dispute relates to the alleged agreement to sell executed by Kewal Singh in favour of the plaintiff as power of attorney holder of the defendants and the appellants are questioning the existence of any such power of attorney and further Shri Kewal Singh himself has admitted in unequivocal terms in his statement that though the power of attorney was executed in his favour, the same is not in his possession. In considered opinion of this Court, on the basis of the material on record, no conclusion could be drawn that the defendants had notice about the date of hearing and had sufficient time to appear before the Court and answer the plaintiffs claim. Therefore, in the interest of justice, the appellants/defendants deserve to be granted an opportunity to contest the suit. 21. In this view of the matter, the appeal succeeds, it is hereby allowed. The application preferred by the defendants for setting aside the ex parte is also allowed. The judgment and decree dated 29.3.89 passed by the trial Court in Civil Suit No.3/83 is set aside. The parties are directed to appear before the trial Court on 30.8.2010. The defendants shall file their written statement, if any within a period of 30 days thereafter. Since, the parties are indulged in the litigious battle for about three decades therefore, on the facts and in the circumstances of the case, the trial Court is directed to expedite the trial and dispose of the suit in accordance with law, preferably within a period of one year from the date of this order. No order as to costs.