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2011 DIGILAW 1016 (JHR)

Sunil Kumar Das v. Anil Kumar Das

2011-11-21

N.N.TIWARI

body2011
ORDER In this writ petition the petitioner has prayed for quashing the order dated 6th July 2004 passed by 1st Additional District Judge, Bokaro in Misc. Case No.01 of 1998, whereby learned court below allowed application filed under Order 9 Rule 13 C.P.C. and set aside the ex-parte order dated 29.1.1993 passed in Probate Case No.04/1991. The order has been challenged on the ground that learned court below has passed the impugned order without properly verifying the materials on record. 2. Mr. Shamim Akhtar, learned counsel appearing on behalf of the petitioner submitted that the court below has referred to the order dated 6.8.1991 and 23.8.1991 and has erroneously observed that the notice was not issued on the opposite party. But, it would be evident from Annexure-C to the counter affidavit that notice was issued and served on the respondent. Learned counsel submitted that the order sheets of the said dates show that the notice was served on opposite party No.2, but he refused to sign. 3. Learned counsel appearing on behalf of the respondents opposed the petition and supported the impugned order. He referred to the documents on record in support of his submissions. 4. I have heard learned counsel for the parties and perused the documents and materials on record including the order sheet of Probate Case No.04/1991. 5. Order sheet of 6.8.1991 of the court below shows that in view of the report of Sharistadar learned court below had admitted the case and issued notice to the opposite parties as well as to general public fixing 23.8.1991. 6. The order sheet of 23.8.1991, thereafter, speaks thus :- “23-8-91 Applicant files hazri. Notice served upon the general public. S/R received. Applicant to prove the S/R. Notice served upon opp. Party No.2 refused to sign. S/R received. S/R of notice upon O.P. No.1 and 3 to 6 not received. Await and put up on 28.8.1991.” 7. It is evident from the above order that the notice was served on general public for which service report was to be proved. The applicant was directed to prove the same. Regarding service of notice on the opposite party No.2, it has been mentioned that notice was served on him, but he refused to sign. The said order sheet further shows that service reports of the notices sent to opposite party No.1 and 3 to 6 were not received. 8. The applicant was directed to prove the same. Regarding service of notice on the opposite party No.2, it has been mentioned that notice was served on him, but he refused to sign. The said order sheet further shows that service reports of the notices sent to opposite party No.1 and 3 to 6 were not received. 8. Learned counsel for the petitioner laid much emphasis on the order sheet of 23.8.1991 to show that the notice was properly served on the opposite party No.2 and that learned court below by the impugned order has erroneously held that the notice was not served on him. 9. Order V of the Code of Civil Procedure (CPC) deals with the issue and service of summons. Rule 17 thereof prescribes procedure when the defendant refuses to accept service, or cannot be found. Rule 17 of Order V runs as follows :- “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 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.” 10. Further Rule 19 of Order V provides for examination of serving officer where a summon is returned under Rule 17. 11. Rule 19 is reproduced herein below :- “19. Examination of serving officer. Further Rule 19 of Order V provides for examination of serving officer where a summon is returned under Rule 17. 11. Rule 19 is reproduced herein below :- “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 -3 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.” 12. On joint reading of rules 17 and 19 of Order V, it is clear that in case of refusal of notice by the defendant, the serving officer has to affix the copy of the summons at 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. He, thereafter, has to 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, as prescribed by the said rule and the circumstance under which he did so, and also the name and address of the person by whom the house was identified and in whose presence the copy was affixed. In the event of return of summons with such endorsement of the process server, the service officer has to be examined on oath by the said court itself or by another Court, if the returned notice has not been verified by the affidavit of the serving officer and even it is so verified. The court, thereafter, shall declare that the summons has been duly served or order such service as it thinks proper. 13. As noticed above, order sheet dated 23.8.1991 does not mention about verification of the return on affidavit by the serving officer nor does it say about any examination of the serving officer by the court nor does it mention any declaration of the court that the notice was duly served. 13. As noticed above, order sheet dated 23.8.1991 does not mention about verification of the return on affidavit by the serving officer nor does it say about any examination of the serving officer by the court nor does it mention any declaration of the court that the notice was duly served. The provisions of rules 17 and 19 have not been complied with and there was no proper order declaring service of summons on the opposite party No.2. 14. By the impugned order, learned court below, though, has not properly couched his order, has held that the notice was not served on the opposite party No.2. On that ground he has allowed the Misc. Case No. 01/1998 setting aside the ex-parte order and restoring the probate case to its original file in order to give an opportunity to the opposite party No.2-appellant. 15. I find no illegality or arbitrariness or any error in exercise of jurisdiction by learned court below. There is, thus, no merit in this writ petition and the same is, accordingly, dismissed.