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Madhya Pradesh High Court · body

2010 DIGILAW 888 (MP)

Ujjwal Kesari v. Krishna Gupta

2010-09-01

K.K.LAHOTI, S.C.SINHO

body2010
ORDER 1. This petition is directed against an order dated 25.2.2010 by III Additional. District Judge (Fast Track Court), Shahdol in Case No. 1/2010 by which the trial Court rejected the application under Order 9, Rule 7, Civil Procedure Code. 2. It is submitted by the petitioner that the trial Court erred in rejecting the application filed by the petitioner on the ground that there was implied refusal of the summons on behalf of the petitioner and the petitioner ought to have moved an application within a period of 30 days from the date when the ex-parte order was passed. It is further submitted by the petitioner that no summons was served on the petitioner and on getting knowledge of the ex-parte 'order, he moved an application on 25.2.2010, but the trial Court erred in rejecting the application. 3. Learned counsel appearing for the respondent/election petitioner supported the order who submitted that on 8.2.2010, process-server offered summons to the petitioner, but the petitioner on the pretext that he was busy in some meeting avoided service and asked process-server to come on next day. On next day, when process-server visited the house of the petitioner, he was not available as he had gone to Shahdol. As no other adult member was found in the house, the process-server returned the summons. The election Tribunal considering these aspects in order dated 15.2.2010 directed that the petitioner be proceeded ex-parte. 4. From the perusal of the summons report of the process-server on the reverse side of summons Annexure P/6, we find that he visited the petitioner and asked him to receive notice and copy of the election petition, but petitioner stated to him that he was busy in a meeting and he will receive the summons after reading on next day. On next day, when process-server visited the house of the petitioner, it revealed him that the petitioner had gone to Shahdol and there was no definite information of return of petitioner. No major member of the family of the petitioner was available on whom notice could have been served, so process server with the report that the notice could not be served, returned it to the trial Court. No major member of the family of the petitioner was available on whom notice could have been served, so process server with the report that the notice could not be served, returned it to the trial Court. The trial Court considered these aspects in order dated 15.2.2010 and found that non-receiving the notice on earlier date, on the pretext of meeting, falls within a purview of refusal and treating this as service on the petitioner directed to proceed ex-parte against the petitioner and the case was fixed for reply of other respondents on 25.2.2010. On 25.2.2010, petitioner preferred an application under Order 9, Rule 7, Civil Procedure Code which has been rejected by the impugned order. 5. Aforesaid facts specifically reveal that on 9.2.2010 in fact that summons was returned as unserved and on 8,2,201 0, though summons and copy of election petition were offered to the petitioner but he asked the process-server to come on next day, so that he can receive the notice after going through it. The process server relying on the aforesaid contention of the petitioner returned back and had not treated aforesaid as refusal. On next date when petitioner or any other adult member of the family was not found in the house, process-server returned the summons as unserved. 6. The M.P. Municipalities (Election Petition) Rules, 1962 provides the procedure in respect of enquiry of an election petition under Rule 5 which reads as under: 5. Procedure – Subject to the provisions of the Act of these rules, every election petition shall be enquired into by the Judge, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits; Provided that it shall only be necessary for the Judge to make a memorandum of the substance of the evidence of any witness examined by him. 7. Rule 3 provides a copy of the election petition to be served on each respondent. In absence of any specific procedure for service of summons, the procedure envisaged in Rule 17 of Order 5, Civil Procedure Code may be seen, which reads thus:- of Rule 17. Procedure when defendant refuses to accept service, or cannot be found. 7. Rule 3 provides a copy of the election petition to be served on each respondent. In absence of any specific procedure for service of summons, the procedure envisaged in Rule 17 of Order 5, Civil Procedure Code may be seen, which reads thus:- of Rule 17. Procedure when defendant refuses to accept service, or cannot be found. n 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 likehood 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. 8. Rule 17 specifically provides that where defendant refuses to sign acknowledgment, the serving office shall affix copy of summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business and then shall return the original to the Court from which it was issued with a report endorsed thereon stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. But in the present case, no such procedure was followed. But in the present case, no such procedure was followed. The election Tribunal before proceeding ex-parte against the petitioner ought to have looked into the procedure as contained in the M.P. Municipalities (Election Petition) Rules, 1962 or in Rule 17 of Order 5 of the Code of Civil Procedure and as such on recording a satisfaction about the compliance of the aforesaid provisions, the trial Court ought to have proceeded ex-parte in the matter. But it appears that ignoring aforesaid provisions, the Election Tribunal presumed refusal of the summons which is apparently not correct, in the facts of the case. When the process-server himself returned the summons as unserved, the Election Tribunal ought to have issued a fresh summons to the petitioner. Apart from this, when the petitioner on 25.2.2010 itself moved an application for setting aside the ex-parte order dated 15.2.2010, the Election Tribunal ought to have taken a lenient view in the matter. The object of Order 9 Civil Procedure Code is not penal in nature and Order 9, Rule 7, Civil Procedure Code specifically provides a good cause for setting aside ex-parte order, then the trial Court ought to have taken a lenient view in the matter in setting aside the ex-parte order. The subject -matter of the case is election petition in which substantial rights of the petitioner, who is a returned candidate are involved and in these circumstances, the trial Court ought to have set aside the ex-parte order dated 15.2.2010 on the application filed by the petitioner on 25.2.2010 i.e. within a period of 10 days from the date of ex-parte order. 9. In view of aforesaid, impugned order is not sustainable under the law and is hereby set aside. The petitioner is permitted to participate in the proceedings. The trial Court shall permit the petitioner to file written statement in the case within a period of 30 days from today. 10. Considering facts of the case, there shall be no order as to costs.