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2010 DIGILAW 1636 (PNJ)

Palo v. Ajaib Singh

2010-05-11

RAKESH KUMAR JAIN

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JUDGMENT RAKESH KUMAR JAIN J. (ORAL) - CM No.27360-CII-2009 This is an application filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 41 days in filing of the appeal. Notice in the application was issued on 20.11.2009 to which no reply has been filed. Learned counsel for the appellant has alleged that the applicant had taken legal opinion about the filing of the appeal. She was told that the limitation is 90 days though, it was later on found to be 30 days and in that process a delay of 41 days had occurred. It is alleged that delay caused is neither intentional nor deliberate but bona fide. Although, no reply has been filed to the application yet learned counsel for the respondents has submitted that ignorance of law is not an excuse and on that ground, delay should not be condoned. 2. I have heard both the learned counsel for the parties and I am of the view that in the given circumstances where rustic villagers like appellant had taken an opinion for filing of the appeal, to whom the limitation is told to be as 90 days and has filed the appeal even before the expiry of 90 days. It appears that delay caused is neither intentional nor deliberate. Thus, the delay in filing the appeal is hereby condoned. FAO No.5512 of 2009 This appeal is directed against order dated 22.7.2009 passed by the Presiding Officer, Election Tribunal-cum-Deputy Commissioner, Patiala (for short ‘the Election Tribunal’) whereby election of the appellant to the post of Panch has been set aside after she has been proceeded against ex parte on the basis of refusal report about the delivery of summons. Learned counsel for the appellant has, inter alia, argued that the appellant has been illegally proceeded against ex parte as the refusal report has been manipulated and is not in accordance with the provisions of Code of Civil Procedure, 1908 (for short ‘CPC’). It is also submitted that as per Section 81 of the Punjab State Election Commission Act, 1994 provisions of the CPC are applicable to the proceedings before the Election Tribunal. It is also submitted that as per Section 81 of the Punjab State Election Commission Act, 1994 provisions of the CPC are applicable to the proceedings before the Election Tribunal. It is further submitted that the refusal report is totally in violation of Order V Rule 17 of the CPC and Clause (v) of Part B(c)(3) of Chapter 7 of High Court Rules and Order Volume IV as neither serving officer had affixed a copy of summons on the outer door of the house of the appellant nor her house had been identified as required under the aforesaid provision. 3. On the other hand, learned counsel for the respondent has submitted that since the report has been attested by the Chowkidar of the Village-Surjan Singh and co-villager Raghuvir Singh, therefore, it does not lie in the mouth of the appellant to contend that the refusal of report has been manipulated. 4. Thus, the whole case of the appellant is based upon the refusal report. It is claimed that the appellant has not been served and has been illegal proceeded against ex parte and as such the order of the Election Tribunal deserved to be set aside and she is entitled to an opportunity to defend herself as she is the elected Panch. 5. I have heard both the learned counsel for the parties. It is claimed that the appellant has not been served and has been illegal proceeded against ex parte and as such the order of the Election Tribunal deserved to be set aside and she is entitled to an opportunity to defend herself as she is the elected Panch. 5. I have heard both the learned counsel for the parties. Before adverting to the merits of the case it would be relevant to refer to the provisions, which have been quoted by the learned counsel for the appellant, of Order V Rule 17 of the CPC and Clause (v) of Part B(c)(3) of Chapter 7 of High Court Rules and Order Volume IV, which reads as under: - “Order V Rule 17 of the CPC -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 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 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 whom the house was identified and in whose presence the copy was affixed.” “Clause (v) of Part B(c)(3) of Chapter 7 of High Court Rules and Order Volume IV – Service by affixation under Order 5, Rule 17 – If the service be made under Order V, Rule 17, it should, in like manner, be proved according to the circumstances of the case, either that the persons to whom the summons or notice was tendered refused to sign the acknowledgement, though he was informed of the nature and contents of the document, or that the defendant could not be found or was absent from his residence, and that there was no agent empowered to accept service, nor any other person on whom the service could be made; and, in either case, that the house, on the outer door of which a copy of the process was affixed, was the ordinary residence or place of business of the defendant at the time when it was so affixed. It is the duty of the Court in such cases to satisfy itself after taking the process-server’s affidavit or statement on solemn affirmation and after such further enquiry as may be necessary, that reasonable efforts were made without success to serve the defendant personally, and then declare whether the summons was ‘duly served’. Without such a declaration under Order V, Rule 19, the summons cannot be held to be duly served.” 6. Order V of the CPC deals with issue and service of summons. In our adversary system of litigation, the Court must be vigilant to ensure services of the summons of the case, set up by the plaintiff, upon the defendant so that an un-scrupulous plaintiff may not have an edge over the defendant by manipulating the service of refusal, which is considered to be an effective service. In this regard, Legislature has provided various checks and balances in Order V of the CPC itself in which Order V Rule 17 deals with the procedure in case defendant refused to accept service or cannot be found. It is provided that where defendant refuses to sign the acknowledgment of the receipt of summons, 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 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 whom the house was identified and in whose presence the copy was affixed. The purpose of framing this provision by the Legislature is to rule out any possible manipulation at the hands of the plaintiff at the time of service of summons by greasing the palm of serving officer. Rules provides that (i) serving officer shall affix a copy of the summons on the outer door or business premises where defendant works for gain, (ii) he would report endorsement thereon of such an affixation; (iii) he would also disclose the circumstances under which the affixation was done; (iv) he would disclose the name and address of the person by whom the house was identified. The purpose for this provision is to avoid a possible connivance of plaintiff with the process server, who could identify somebody else’s house because in that eventuality, the said person would definitely refuse to accept the said summons. 7. This High Court has further framed Rule in terms of Section 122 of the CPC, which empowers the High Court to frame rules from time to time for regulating their own procedure. In this process, Rule 5 is inserted in para 3 of Chapter 7 of High Court Rules and Order Volume IV, which provides that if the service be made under Order V, Rule 17, it should, in like manner, be proved according to the circumstances of the case, either that the persons to whom the summons or notice was tendered refused to sign the acknowledgement, though he was informed of the nature and contents of the document, or that the defendant could not be found or was absent from his residence, and that there was no agent empowered to accept service. It is the duty of the Court in which service after taking the process of solemn affirmation and after such further enquiry as may be necessary that reasonable efforts were made without success to serve the defendant personally and then declare whether the summons was ‘duly served’. Without such a declaration under Order V, Rule 19 of the CPC, the summons cannot be held to be duly served. 8. Learned counsel for the appellant has also relied upon a decision of this Court in the case of “Om Parkash Versus Surinder Kumar and another” AIR 1990 Punjab 97 and decision of Madhya Pradesh High Court in the case of “Smt. Rooprani and another Versus Prem Singh and another” 2008 (4) RCR (Civil) 8 to contend that in case of refusal of service by the defendant, provision of Order V Rule 17 have to be strictly complied with. 9. In view of the aforesaid discussion, I find that the learned Election Tribunal has palpably committed an error in law in not following the provision of Order V Rule 17 of the CPC much less Clause (v) of Part B(c)(3) of Chapter 7 of High Court Rules and Order Volume IV before proceeding against the appellant ex parte, merely on the report of refusal placed before it by the serving officer. Moreover, it is not believable that an elected Panch would not contest the litigation in which her election is in Jeopardy. 10. In view of the above, the present appeal is allowed and impugned order dated 22.7.2009 passed by the Presiding Officer, Election Tribunal-cum-Deputy Commissioner, Patiala is hereby set aside. The matter is remanded back to the Election Tribunal to decide the same as afresh, in accordance with law. Parties are directed to appear before the Election Tribunal on 28.6.2010. The Election Tribunal is directed to decide the Election Petition expeditiously as earlier as possible preferably within a period of three months from the date of appearance of the parties.