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2013 DIGILAW 2222 (RAJ)

Anupam Lubricants Ltd. v. Narendra Kumar Sethi

2013-12-09

BELA M.TRIVEDI

body2013
JUDGMENT Hon'ble TRIVEDI, J.—The present appeal filed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 is directed against the order dated 05/10/2009 passed by the Additional District Judge (Fast Track) No.2, Jaipur District, Jaipur (hereinafter referred to as 'the Trial Court') in Civil Case No.151/2008, whereby the Trial Court has dismissed the application of the appellants/defendants filed under Order IX Rule 13 of CPC, for setting aside the exparte judgment and decree dated 07/03/2008 passed in Civil Suit No.64 of 2003 (24 of 2001). 2. At the outset, it is required to be stated that the exparte decree dated 07/03/2008 passed by the Trial Court was sought to be set aside by the appellants-defendants by filing application under Order IX Rule 13 of CPC in June, 2009, and the said application came to be dismissed vide the impugned order dated 05/10/2009. Pending the present appeal, the Court had initially directed the parties to maintain status quo as per the order dated 30/10/2009, however, thereafter had directed the appellants to deposit the amount in terms of the decree, as per the order dated 29/01/2010. The learned counsel for the appellants therefore had sought time, which was granted by the Court. On 05/03/2010, the learned counsel for the appellants again had sought time for two months to deposit the amount of Rs. 15 lacs with the Trial Court. The said time was also granted by the Court as per the order dated 05/03/2010. The matter was thereafter adjourned from time to time, however, appellants did not deposit the said amount nor the concerned Counsel for the appellants had remained present on the dates i.e. 06/08/2010, 15/09/2010 and 23/09/2010. Since there was no interim order in force against the execution of the decree in question, it appears that the respondents had taken over the possession of the suit premises on 24/07/2012, though the process of Court in the executing proceedings. The learned counsel Mr. Parag Rastogi for the respondent No.1 has placed on record the certified copies of the order sheets of the execution proceedings being No.198/2012. During the course of arguments, the learned Senior Counsel Mr. R.K. Agarwal for the appellants has also placed on record the copy of the Hindustan Times dated 25/3/2003 to show that on the relevant date i.e. 25/03/2003, the notice was not published in the New Delhi Edition of the said local daily. During the course of arguments, the learned Senior Counsel Mr. R.K. Agarwal for the appellants has also placed on record the copy of the Hindustan Times dated 25/3/2003 to show that on the relevant date i.e. 25/03/2003, the notice was not published in the New Delhi Edition of the said local daily. The said copy of the newspaper is taken on record. 3. The short facts giving rise to the present appeal are that the respondent No.1/plaintiff had filed the suit against the appellants/defendants for eviction on various grounds, for fixation of the standard rent, and for permanent injunction. In the said suit, the appellants/defendants were sought to be served initially by ordinary course, by affixing, by registered post, and then by substituted service permitting the respondent/plaintiff to serve the appellants by publication in the Daily Newspaper Hindustan Times, Jaipur Edition as well as New Delhi Edition, as per the order dated 07/02/2003. Since nobody appeared for the appellants/defendants in the suit, the Trial Court passed the order on 22/05/2003 for proceeding exparte against the appellants/defendants. It appears that thereafter the Trial Court passed the decree after appreciating the evidence on record on 07/03/2008. According to the appellants/defendants, they came to know about the said exparte decree on 01/05/2008, and after obtaining the certified copy of the said decree, they filed application under Order IX Rule 13 CPC for setting aside the said exparte decree somewhere in June, 2008. The said application has been dismissed by the Trial Court vide the impugned order dated 05/10/2009. Being aggrieved by the same, the present appeal has been filed. 4. The learned Senior Counsel Mr. R.K. Agarwal for the appellants, having placed heavy reliance on the order sheets drawn by the Trial Court in the suit, and more particularly the order dated 07/02/2003, submitted that the Court had not satisfied itself as to whether the appellants/defendants were avoiding the service of notice by ordinary course or not, and had permitted the respondent/plaintiff to serve the appellants by substituted service. Relaying on the decision of this Court in the case of Harbhajan Singh & Anr. vs. L.Rs. of Gardhara Singh, AIR 2010 Rajasthan 170 = 2010(4) RLW 3473 & in case of Dwarika Prasad vs. Smt. Shakuntala Dubey & Ors., AIR 2010 Chhattisgarh 13, Mr. Relaying on the decision of this Court in the case of Harbhajan Singh & Anr. vs. L.Rs. of Gardhara Singh, AIR 2010 Rajasthan 170 = 2010(4) RLW 3473 & in case of Dwarika Prasad vs. Smt. Shakuntala Dubey & Ors., AIR 2010 Chhattisgarh 13, Mr. Agarwal submitted that the mode of substituted service should 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. He also submitted that even otherwise the respondent/plaintiff had not carried out the order dated 07/02/2003 passed by the Trial Court as the Trial Court had directed to publish the notice in Jaipur as well as New Delhi edition of local daily newspaper Hindustan Times, but the respondent/plaintiff had got published the notice in the Jaipur Edition only, and not in the New Delhi Edition. Mr. Agarwal has placed on record the copy of the Hindustan Times Metro dated 25/03/2003 to buttress his submission in this regard. According to him, the Trial Court had committed an error in observing that the respondent/plaintiff had got published the notice in both the Editions of Delhi and Jaipur. He also submitted that the addresses of the appellants/defendants were also not correctly shown in the plaint, and therefore also, it could not be said that the appellants/defendants were duly served with the summons. He also submitted that the Head Office of the appellant No.1 being at New Delhi, it was incumbent on the part of the plaintiff to get the notice published at the place where the Head Office of the appellants was situated. 5. The learned counsel Mr. Parag Rastogi for the respondent No.1, however, taking the Court to the record of the case, submitted that the summons were sought to be served on the appellants/defendants by ordinary course as well as by affixing and also by registered post, however, since the same could not be served, the Trial Court had permitted the respondent to serve by substituted service under Order V Rule 20. He submitted that the notices were served in both the Editions of Jaipur and New Delhi, and the appellants were also aware about the pendency of the suit, however, they deliberately choose not to appear in the suit which culminated into passing of the exparte decree against them. He further submitted that the application under Order IX Rule 13 filed by the appellants through the power of attorney holder of Mr. Subhash Lalwani was also not maintainable as said Mr. Subhash Lalwani was not the Director of the appellant No.1. He also submitted that the possession of the premises has already been taken over through the due process of law since July, 2007, and the appeal has become infructuous. 6. In the instant case, having regard to the record of the suit, as well as of the application under Order IX Rule 13, it appears that the Trial Court had time and again issued the summons to serve the appellants/defendants by ordinary course, by registered post, and by affixing at the premises in question during 2001 to 2003, however, the Trial Court having not been satisfied with such services, directed the respondent / plaintiff to serve the appellants by publication in the local daily Hindustan Times, under Order V, Rule 20 vide the order dated 7/2/2003. Accordingly, it appears from the record that the respondent/plaintiff had got the said notice published in the Jaipur Metro Edition of Hindustan Times, New Delhi. The respondent/plaintiff had placed on record the original publication in Hindustan Times, Jaipur Metro dated 25/03/2003. However, it appears that there was nothing on record to show that the said notice was also published in the Delhi Edition of the local daily Hindustan Times. The counsel for the appellants has placed on record the copy of the said local daily Hindustan Time Delhi Metro Edition of the said date to show that such a notice was not published in the said edition on the said date. In absence of anything to show that the notice was also published in the Delhi Edition, it can be presumed that it was not published in the Delhi Edition. However, it is not disputed that the notice was published in the Jaipur Edition of the local daily Hindustan Times, New Delhi on 25/03/2003. 7. In absence of anything to show that the notice was also published in the Delhi Edition, it can be presumed that it was not published in the Delhi Edition. However, it is not disputed that the notice was published in the Jaipur Edition of the local daily Hindustan Times, New Delhi on 25/03/2003. 7. At this juncture, it is required to be noted that as per the provisions contained in Rule 20(1A) of Order V, the notice is required to be published in the daily newspaper circulated in the locality in which the defendant is last known to have actually and voluntarily resided or carried on business or personally worked for gain. In the instant case, the suit premises in respect of which the suit for eviction was filed, was situated at Jaipur, and therefore the publication of the said notice in the local daily newspaper Hindustan Times, Jaipur Edition would be sufficient compliance of the said provision contained in Rule 20(1A) of Order V. There is nothing on record to suggest that the appellants were carrying on business at New Delhi, though it was sought to be submitted by the learned counsel for the appellants that the Head Office of the appellant No.1 was at New Delhi at the relevant time. Since the requirement of the said provision under Order V Rule 20(12A) is the publication of the notice in the locality where the defendant carries on business, non-publication of the notice in the newspaper in a locality where the head office of the defendant was situated, could not be said to be a material illegality, which would vitiate the entire proceedings of exparte decree. It is true that the Trial Court, before passing the order for proceedings exparte, should have verified as to whether the notices, as directed by it, were duly published in both the editions or not, however, it appears from the order sheets that the Trial Court having been satisfied that it was duly published in the Hindustan Times, New Delhi, Jaipur Metro, the Trial Court had directed to proceed exparte against the appellants. It is also pertinent to note that the said order was passed by the Trial Court after attempting to serve the appellants by ordinary course as well as service by affixing and by registered post. 8. It is also pertinent to note that the said order was passed by the Trial Court after attempting to serve the appellants by ordinary course as well as service by affixing and by registered post. 8. Under the circumstances, non-publication of the notice in the Delhi Edition at the most could be said to be an irregularity in service of notice, which could not be said to be a ground for setting aside the exparte decree as per the proviso to Order IX Rule 13 CPC. As stated here-in-above, the Trial Court had passed the order for substituted service on 07/02/2003, after having been satisfied that the service by ordinary course was not possible. It is also pertinent to note that the suit proceedings remained pending for about five years, however, the appellants had never bothered to know about the progress of the suit. There cannot be any disagreement to the proposition of law laid down by this Court in the decision Harbhajan Singh & Anr. vs. L.Rs. of Gardhara Singh (supra) relied upon by the learned Senior Counsel for the appellants, however, in the instant case the Court having passed the order of substituted service after having been satisfied about the conditions stipulated in Order V Rule 20, the said case has no application to the facts of the present case. The Trial Court has considered all the aspects of the matter, and dismissed the application under Order IX Rule 13 by the impugned order which appears to be just and proper order. 9. As stated hereinabove, pending the present appeal, the said decree has already been executed by the respondent, and the possession of the suit premises has also been taken over through the process of Court. Though it is true that merely because the decree under appeal has been executed for want of stay order from the Superior Court, the right of the judgment debtor to prosecute the appeal would not be lost, as observed by the Apex Court in case of Ramkumar Agrawal vs. Thanwar Das, (1999) 7 SCC 303 , from the conduct of the appellants it clearly transpires that the appellants had waived and consciously given up their right of possession in respect of the suit premises. Despite the sufficient opportunities having been granted by this Court, the appellants had not paid the dues under the decree and had allowed the respondent to execute the decree and take away possession of the suit premises. Hence, also the Court has reason to believe that the appellants had consciously given up their right to prosecute the appeal or protect the possession of the suit premises. 10. In that view of the matter, the appeal being devoid of merits deserves to be dismissed, and is accordingly dismissed.