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2012 DIGILAW 50 (CHH)

RANJEET SINGH BINDRA v. RAJESH TIKRIHA

2012-02-06

N.K.AGARWAL

body2012
ORDER 1. Legality and propriety of the order dated 18.08.2011 passed by IInd Civil Judge Class-I, Raipur, in MJC Case No. 27/2007, setting aside ex-parte judgment and decree passed in favour of applicant/plaintiff, is under assail in the instant revision. 2. The facts in brief, shorn of details, and necessary for disposal of this civil revision lie in a narrow compass. The plaintiff instituted a suit for permanent injunction against the respondent/defendant on 25.09.04 along with an application for grant of temporary injunction. The trial court directed service of summons upon the defendant through Special Process Server and fixed the case for defendant's reply on 30.09.04. Defendant's address shown in plaint is as under: 3. As per service report, near Tatyapara Square, Raipur, the summons was served upon the wife of defendant on 29.09.04. On 30.09.04, the case was adjourned for 04.10.04 as Presiding Officer was on leave. On 04.10.04, the trial court proceeded ex-parte against the defendant and ultimately on 24.11.04 an ex-parte judgment and decree was passed. 4. After coming to know about ex-parte decree, the defendant filed an application for setting aside ex-parte decree on 30.08.05 inter alia on ground the summons was not served upon the defendant. 5. The trial court, vide order impugned, set aside the ex-parte judgment and decree. Hence this Revision. 6. Shri AK Prasad, learned counsel appearing for the applicant would submit summons served upon the wife of defendant on 29.09.04 by the Special Process Server is evident from the report of Process Server, therefore, the plea raised by the respondent regarding "non service of summons" is on the face incorrect. It was .further contended the application for setting aside ex-parte judgment and decree was filed beyond the statutory period of limitation without filing any application for condonation of delay so also the ex-parte judgment and decree should not have been set aside by the trial court. By referring second proviso to Order 9 Rule 13 of CPC, it was further argued by Shri Prasad that no court shall set aside the decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons and thus the court below has committed jurisdictional illegality in setting aside ex-parte judgment and decree passed in favour of applicant. 7. 7. On the other hand, Shri Janak Ram Verma, learned counsel appearing for the respondent supported the order and submitted the ex-parte decree has been set aside on the ground of non service of summons upon the defendant and order impugned does not call for any interference. 8. I have heard the counsel appearing for the parties, perused the order impugned and paper book of the case. 9. Indisputably, the notice was alleged to be served on the wife of the respondent on 29.09.2004 and the date fixed for appearance was 30.09.04; though there was no time much less sufficient to reach the court for appearance on that date. On 30.09.04 Presiding Officer was on leave and the case was posted for proper orders on 04.10.04, meaning thereby, the date of 04.10.04 was not the date of hearing. While adjourning the suit for 04.10.04, the said date was not communicated to the respondent as envisaged in Order 9 Rule 6(c) of CPC. Thus, on the face, summon was not dully served upon the defendant. The limitation began to run only when respondent had knowledge of the ex-parte decree. From the date of knowledge, the application for setting aside ex-parte decree has been filed. 10. True, Second proviso to Order 9 Rule 13 of CPC added by the amendment provides that no court shall set aside the decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. It is the knowledge of date of hearing and not the knowledge of pendency of suit which is relevant for the purpose of proviso aforesaid. Thus, the present one is not a case of mere irregularity in service of summons, on the face, it is case of non service of summons. 11. Further, service must be effected on the correct address of the defendant. A bare perusal of Process Server's report would reveal the service of summons was not effected even on the address of defendant given in the plaint, the same was served upon wife of defendant at Tatyapara Square, Raipur, and not at the residential address of defendant. 12. 11. Further, service must be effected on the correct address of the defendant. A bare perusal of Process Server's report would reveal the service of summons was not effected even on the address of defendant given in the plaint, the same was served upon wife of defendant at Tatyapara Square, Raipur, and not at the residential address of defendant. 12. As per the provisions contend in Order 5 Rule 15 of CPC, in order to serve the summons upon the adult member of defendant's family, the requirements are: a. The defendant should be absent from his residence at the time when the service of summons 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 b. Service may be made on any adult members of the family, whether male or female, who is residing with him. Here in the instant case it is crystal clear that neither service of summons was effected at defendant's residence nor is a case that there is no likelihood of defendant being found at the residence within the reasonable time. 13. The Supreme Court in case of Sushil Kumar Sabharwal Vs. Gurpreet Singh and others, 2002 (5) SCC 377 has observed in para 11 & 12 of its judgment as under : "11. The High Court has overlooked the second proviso to Rule 1 3 of Order 9 CPC, added by the 1976 Amendment which provides that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. It is the knowledge of the "date of hearing" and not the knowledge of "pendency of suit" which is relevant for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non-service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non-service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an interference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim which he did not avail and utilise. 12. The provisions contained in Order 9 Rule 6 of CPC is pertinent. It contemplates three situations where on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the court depending on the given situation. The three situations are (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the court may make an order that the suit be heard exparte. The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being "proved" that the summons was duly served when and when alone, the court is conferred with a discretion to make an order that the suit be heard ex-parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or causal approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an- ex-parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his. If only the trial court would have been conscious of its obligation cast on it by Order 9 Rule 6 of CPC, the case would not have proceeded ex-parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation." 14. If only the trial court would have been conscious of its obligation cast on it by Order 9 Rule 6 of CPC, the case would not have proceeded ex-parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation." 14. The Supreme Court in case of Gauhati University Vs. Niharlal Bhattacharjee, 1995 (5) SCC 731 has observed in para 6 as under: "6': It is seen that though notice was served on the appellant on 28-5-1990 and the date fixed for appearance was 29-5-1990, there was no time much less sufficient, to reach the court for appearance on that date. While adjourning the suit to 19-7-1990, the said date was not communicated to the appellant, as envisaged in clause (c) of Rule 6 of Order 9. Thus, the summons was not duly served. The limitation began to run only when the appellant had knowledge of the ex-parte decree. From the date of the knowledge, admittedly, the application was filed, within 30 days. The courts below had not adverted to this aspect from this perspective." 15. By applying the ratio of law laid down by the Supreme Court in the aforesaid cases in the facts and circumstances of the present case, it is crystal clear summons was alleged to be served upon the defendant is in utter disregard of provisions contained in Order 5 Rule 15 and Order 9 Rule 6(c) of CPC; the date on which the trial court proceeded ex-parte against the defendant was not the date of hearing and it is not a case of irregularity in service of summons but is a case where summon was not duly served upon the defendant. Though the trial court should have passed a detailed order, but on the facts, the order setting aside the ex-parte decree appears to be correct. 16. For the forgoing, since I do not find any jurisdictional illegality in the order impugned warranting interference of this court in exercise of its revisional jurisdiction, the revision fails and is accordingly dismissed. No order as to costs. Revision Dismissed.