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2013 DIGILAW 287 (RAJ)

Iqbal Kaur v. Jagdish Prasad

2013-02-04

VIJAY BISHNOI

body2013
Hon'ble BISHNOI, J.—The present writ petition is filed by the Petitioners while challenging the validity of the order dated 13.10.2006 (Annexure. 5) passed by the Additional District Judge, Rai Singhnagar District Sri Ganganagar and the order dated 25.3.2004 (Annexure 4) passed by the Civil Judge (Junior Division), Vijaynagar District Sri Ganganagar. The application under Order 9 Rule 13 read with Section 151 CPC preferred by the petitioners 1 to 8 for setting aside the ex-parte decree dated 6.11.2003 (Annexure 2), passed in civil suit No. 6/99, is dismissed by order dated 25.3.2004 (Annexure 4), whereas appeal against it, is also dismissed by order dated 13.10.2006 (Annexure 5). 2. The brief facts of the case are that the respondent No. 1 has filed a civil suit on 11.1.1999 in the Court of Civil Judge (Jr. Div.) Sri Vijaynagar Distt. Sri Ganganagar for cancellation of sale deed dated 6.9.1965, executed by Bodaram (father of respondent No.1) in favour of Jarnail Singh & Karnail Singh for sale of 24 bighas of Nahari land of Chak No. 2 BLD A and B of Tehsil Sri Vijaynagar District Sri Ganganagar. The learned Civil Judge vide order dated 15.3.1999 has issued summons to the defendants and fixed the next date as 23.4.1999. Later on the learned Civil Judge (Junior Division), Sri Vijay Nagar has ordered ex-parte proceedings against the defendants No.1 to 10, 15 and 18 on 14.1.2003 and thereafter ordered ex-parte proceedings against the defendants No.11 to 14, 16 & 17 on 24.9.2003. Learned Civil Judge, Sri Vijay-nagar has thereafter decreed the suit, filed by the respondent No.1 Jagdish Prasad, vide judgment dated 6.11.2003 and has cancelled the sale deed dated 6.9.1995 executed by Bodaram in favour of Jarnail Singh & Karnail Singh. 3. The petitioners No. 1 to 8 were defendant in the suit No. 6/99 whereas petitioners No. 9 to 11 were joined as petitioners by the order of this Court dated 3.3.2008. 4. The petitioners being aggrieved by the judgment and decree dated 6.11.2003 has filed an application under Order 9 Rule 13 read with Section 151 C.P.C. for setting aside the ex-parte decree dated 6.11.2003 (Annexure 2). The said application, preferred by the petitioners, was dismissed b the learned Civil Judge, Shri Vijay Nagar vide order dated 25.3.2004 (Annexure 4). The petitioners No. 1 to 8 thereafter have preferred appeal in the court of learned Addl. The said application, preferred by the petitioners, was dismissed b the learned Civil Judge, Shri Vijay Nagar vide order dated 25.3.2004 (Annexure 4). The petitioners No. 1 to 8 thereafter have preferred appeal in the court of learned Addl. District Judge, Rai Singh Nagar however, the said appeal was also dismissed by the learned Addl. District Judge, Rai Singhnagar vide order dated 13.10.2006 (Annexure 5) and hence the petitioners No. 1 to 8 have preferred this writ petition while challenging the order dated 13.10.2006 (Annexure 5) passed by the learned Addl. Sessions Judge, Sri Raisinghnagar as well as the order dated 25.3.2004 (Annexure 4) passed by the Civil Judge, Sri Vijaynagar and has claimed following reliefs in the writ petition: "It is, therefore, respectfully prayed that this writ petition in the nature of certiorari may kindly be allowed: the impugned orders dated 13.10.2006 (Annx. 5) and 25.3.2004 (Annx. 4) passed by the learned lower appellate court and the trial court respectively, may kindly be quashed and set aside: the application Annx. 3 filed by the petitioners under O. 9 Rule 13 read with Section 151 CPC may kindly be allowed as prayed therein while setting aside the ex parte decree dt. 6.11.03 (Annx. 2) passed by the learned trial Court in Civil Original Suit No. 6/99 and the petitioner defendants may kindly be allowed to contest the suit filed by the plaintiff/non-petitioner No. 1 on merits. Any other appropriate interim order or direction which is found just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner-defendant." 5. A reply to the writ petition is filed on behalf of the respondent No. 1 only and the claim of the petitioners is denied. Learned counsel for the petitioners Mr. Abhinav Jain has argued that summons issued by the trial court in suit No. 6/99 has not been served upon the defendants No. 1 to 9 at any point of time however, the learned trial court without ascertaining the proper service upon the defendants has illegally ordered for substituted service through the newspapers. Learned counsel for the petitioners has submitted that the learned trial court has acted in haste in ordering for substituted service without taking recourse of service for summons on the defendants in ordinary way. Learned counsel for the petitioners has submitted that the learned trial court has acted in haste in ordering for substituted service without taking recourse of service for summons on the defendants in ordinary way. Learned counsel for the petitioner has also contended that as per the provisions of order 5 Rule 20 CPC, if summons of a case could not served in the ordinary way, then the Court shall first order the summons to be served by affixing the copy thereof in some conspicuous place in the house and also upon some conspicuous part of the house in which the defendant is known to have last resided and even despite that the person is not served then only the Court can pass order for substituted service. It is further argued by Mr. Jain that in the present case, no such recourse was taken by the trial court and the trial court has straightway ordered for substituted service. Learned counsel for the petitioners has further contended that on 7.4.2003, learned trial court has ordered for publishing the summons in daily newspaper `Rajasthan Patrika' but the respondents No. 1 got it published in `Dainik Seema Sandesh' and not in Rajasthan Patrika and, therefore, also substituted service upon the petitioners cannot be said to be valid. It is also contended by learned counsel for the petitioners that for the period of about 3 years, only twice the summons have been filed by the respondent No. 1. It is contended that at the first instance, when the summons were sent on the address of the petitioners, it was specifically reported by the process server on all the summons, except 1 or 2, that the persons are not residing at village 2 BLD A & B and are residing at different places. Despite the said report, the learned lower court has not bothered to order for issuance of summons at the proper addresses of the defendants and in a casual manner again issued the summons on the same addresses where earlier summons were sent. Despite the said report, the learned lower court has not bothered to order for issuance of summons at the proper addresses of the defendants and in a casual manner again issued the summons on the same addresses where earlier summons were sent. Learned counsel for the petitioner has also submitted that the trial court has grossly erred in decreeing the suit vide judgment and decree dated 6.11.2003 without even framing any issue on the point of limitation whereas on the day when the suit was registered i.e. 15.3.1999, it was specifically mentioned in the order sheet that the suit is registered while reserving the objection regarding the limitation. Learned counsel for the petitioner further assailed the judgment passed by the learned Addl. District Judge on 13.10.2006 while submitting that the learned Addl. District Judge has dismissed the appeal preferred by the petitioners without looking into the facts of the case. It is submitted that the learned Addl. District Judge has observed in the order dated 13.10.2006 that the sons and daughters of Bodaram who are defendants in the suit were duly served then it cannot be said that wife of Bodaram was not aware about the pendency of the suit. Learned counsel for the petitioner further invited my attention towards the observations made by the appellate court in respect of defendants No. 11 to 14 and 16 & 17 and has argued that the appeal before the appellate court was not preferred on behalf of the original defendants No. 11 to 14, 16 & 17 but the same was preferred by the defendants No. 1 to 9, however the appellate court has taken into consideration the facts of service of summons upon the other defendants, who are brothers and sisters and near relatives of the respondent No. 1 and certainly are not aggrieved by the judgment and decree dated 6.11.2003 and, therefore, this fact itself shows that the learned appellate Court has dismissed the appeal of the petitioners in a very casual manner, without going through the record of the case. Learned counsel for the petitioner has placed reliance on the judgment passed in Abbu Baker & Anr. vs. Deen Dayal & Anr. reported in WLC 2006(4) 494 and Bogidhola Tea & Trading Co. Ltd. & Anr. vs. Hira Lal Somani reported in 2008 AIR SCW 340. 6. Learned counsel for the petitioner has placed reliance on the judgment passed in Abbu Baker & Anr. vs. Deen Dayal & Anr. reported in WLC 2006(4) 494 and Bogidhola Tea & Trading Co. Ltd. & Anr. vs. Hira Lal Somani reported in 2008 AIR SCW 340. 6. Per contra, learned counsel for the respondent No. 1 Shri V.K. Aggarwal has supported the order dated 25.3.2004 (Annexure 4) and the order dated 13.10.2006 (Annexure 5). Learned counsel for the respondent No. 1 has argued that the writ petition preferred by the petitioners is surcharge with mis-statements and concealment of the material facts and has pointed out that the claim of the petitioners that all the petitioners are not residing at Chak 2 BLD A & B is falsified from this fact that in the application under Order 9 Rule 13 read with Section 151 CPC, all the petitioners have shown themselves as the residents of Chak 2 BLD. Similarly, in the appeal as well as writ petition all the petitioners have shown themselves as residents of Chak 2 BLD. It is contended by learned counsel for the respondents that in view of the above facts, it is clear that the petitioners have mis-stated in the writ petition about their residence and, therefore, not entitled to get any relief from this Court. Learned counsel for the respondents has invited my attention towards the application preferred by the petitioners for setting aside the ex-parte decree under Order 9 Rule 13 read with Section 151 CPC and has argued that in this application, it is nowhere stated that summons of the suit have not been served upon them but only it is stated that the summons have not been properly served upon the petitioners and, therefore, in such circumstances, it cannot be said that the summons have not at all been served upon the petitioners. Learned counsel for the respondents has also argued that the summons upon the petitioner No. 1 and the petitioner No. 4 were duly served on 31.8.1999 and the Advocate Shera Ram has also filed his Vakalatnama' on behalf of the petitioner No. 4 and as the petitioners No. 1 & 4 are close relatives of the other petitioners, it cannot be presumed that none of the petitioner was not aware about the pendency of the suit No. 6/99. It is also argued by Mr. It is also argued by Mr. Aggarwal that even if it is assumed, for the sake of the arguments, that the other petitioners except petitioners No. 1 to 4 have not been properly served then also it will be deemed that all the petitioners were aware about the pendency of the suit No. 6/99 before the trial court. Learned counsel for the respondents has further argued that the service of summons upon the petitioners through substituted service was sufficient as the `Dainik Seema Sandesh' is a prestigious news paper being published from Sri Ganganagar and Jaipur publishing news from the entire district of Sri Ganganagar including Sri Vijaynagar and looking to the wide circulation of the news paper, it cannot be said that despite the publication of the summons in `Dainik Seema Sandesh', the petitioners have failed to notice about the pendency of the suit. Learned counsel for the petitioner has prayed for dismissal of the writ petition while submitting that since the petitioners have mis-stated and has concealed the material information from this court, they are not entitled to get any relief from this Court. Learned counsel for the respondent No. 1 has relied upon the judgment passed in The Commissioner of Income Tax, Punjab, Jammu & Kashmir and Himachal Pradesh vs. Daulat Ram Khanna reported in AIR 1967 SC 1552 and Basant Singh & Anr. vs. Roman Catholic Mission reported in (2002) 7 SCC 531 . 7. This Court allowed the application of the petitioners No. 9, 10, & 11 to be impleaded as writ petitioners on 3.3.2008 and on the very same day the writ petition was admitted and the records of Civil Misc. Case No. 03/04 and Civil Suit No. 6/99 were requisitioned from the court of Civil Judge, Junior Division, Sri Vijaynagar. 8. I have carefully examined the record of suit No. 6/99, decided on 6.11.2003 by the Court of Civil Judge (Jr. Div.), Sri Vijaynagar. From the perusal of the record, it is revealed that the suit No. 6/99 was presented before the Civil Judge (Jr. Div.), Sri Vijaynagar on 11.1.1999. On 12.1.1999, it was reported that the suit is not belonging to the jurisdiction of this Court however, the counsel for the plaintiffs has sought time on 14.1.99 to argue on the point of admission and the matter was posted on 23.1.1999. Div.), Sri Vijaynagar on 11.1.1999. On 12.1.1999, it was reported that the suit is not belonging to the jurisdiction of this Court however, the counsel for the plaintiffs has sought time on 14.1.99 to argue on the point of admission and the matter was posted on 23.1.1999. From that day onwards, the matter listed for several times and every time, time was granted to the counsel for the plaintiffs to argue on the point of admission. On 6.3.1999, an application under Sec.5 of the Limitation Act was presented by the counsel for the plaintiffs and the matter was adjourned for arguments on that application. On 12.3.1999, the matter was posted for 15.3.1999 and ultimately on 15.3.1999, the suit was registered with a note that right of plaintiffs to raise objection on the point of limitation are reserved and the trial court has ordered for issuance of summons, for the settlement of issues, to the defendants. 9. Though the trial court has observed for issuance of summons to the defendants on 15.3.1999, the counsel for the plaintiffs has furnished the same for the first time on 24.7.1999 and in between that sought two adjournments for doing it. On 4.9.1999 Advocate Shri Surendra Bhati has filed power on behalf of the defendants No. 11 to 14, 16 & 17, who happened to be brothers sisters and near relatives of respondent No. 1 Jagdish Prasad. On 4.9.1999 the trial court ordered for presenting the summons of the unserved respondents and trial court fixed the matter for 28.10.1999. On 28.10.99, 10.12.99, 21.2.2000 and 7.4.2000 the counsel for the plaintiff had sought time for presenting summons and talbana and ultimately trial court issued summons on 24.4.2000. On 26.5.2000 the trial court has passed order that the summons of plaintiff No. 4 are served and advocate Shri Sheraram has filed power on his behalf but summons of other defendants returned unserved and same may be issued on furnishing by the counsel for plaintiff on their new addresses, given on the unserved summons. On 26.5.2000 trial court posted matter for 20.7.2000. On 26.5.2000 trial court posted matter for 20.7.2000. From 20.7.2000 to 7.4.2003, the counsel for the plaintiff had sought as many as seventeen adjournments for furnishing summons of unserved respondents, containing new address, but not furnished the same and on 7.4.2003 requested the court for allowing substituted service and the trial court readily granted the request of counsel for the plaintiff and ordered that summons of defendants No. 1 to 10, 15 & 18 be published in daily news paper Rajasthan Patrika for service on them. It is clear that the trial court while ordering for substituted service failed to take note of its earlier order dated 26.5.2000, whereby direction was given to present summons of unserved defendants on the new addresses and also failed to notice that the said order has never been complied with by the counsel for plaintiff. This is a clear example of casual approach adopted by the trial court. Be that as it may, even after passing of the order dated 7.4.2003, the counsel for plaintiff had sought as many as five adjournments for getting the summons published in the news paper, as ordered by the trial court on 7.4.2003. However, ultimately on 14.8.2003, the counsel for the plaintiff had produced copy of the 'Dainik Seema Sandesh' dated 2.8.2003 wherein the summons published. On 14.8.2003, the trial court ordered for proceeding exparte against the defendant Nos. 1 to 10, 15 and 18, thereafter ex-parte proceedings were also initiated against the defendants No. 11 to 14, 16 and 17. On 24.9.2003 the matter was posted for evidence of the plaintiff on 4.11.2003 and on that date, the statement of the respondent No. 1 Jagdish Prasad were recorded and the evidence of the plaintiff closed. The matter was posted for arguments on 6.11.2003 and on that date itself the suit was decreed. 10. From the record of the case, it is clear that the learned trial court has altogether failed to adhere the procedure for issue and service of summons as provided under Order 5 contained in the First Schedule of Civil Procedure Code. The provisions of Order 5 CPC relevant for this case are as under: O.5 Rule 11. Service on several defendants.- Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant. O. 5 Rule 17. The provisions of Order 5 CPC relevant for this case are as under: O.5 Rule 11. Service on several defendants.- Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant. O. 5 Rule 17. Procedure when defendant refuses to accept service, or cannot be found.- Where the defendant or his agent of 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 fixed 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. O.5 Rule 20. Substituted service.(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner the Court thinks fit. 11. Order 5 Rule 11 provide that where there are more defendants then one, service of the same shall be effected on each defendants. 11. Order 5 Rule 11 provide that where there are more defendants then one, service of the same shall be effected on each defendants. Order 5 Rule 17 provide that after due and reasonable diligence, if surveying officer cannot find the defendant and there is no body to accept service of the summons on his behalf then the surveying officer shall affix the copy of the summons on the out door or at some other conspicuous part of the house in which the defendant ordinarily resides. Order 5 Rule 20 provides that when the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding the service, or for that any other reason, the summons cannot be served in ordinary way, the court shall order summons to be served through substituted service. 12. In the case in hand summons of defendants No. 1 to 9 were first issued on 26.7.1999 and thereafter on 24.4.2000. The summons issued on 24.7.1999, were served upon defendants Iqbal and Harmeet Singh but the defendants No. 2, 3, 5 to 11 remained unserved. However, the trialcourt while passing order dated 4.9.1999 has failed to take note of the fact that defendants Iqbal Kaur and Harmeet Singh have already been served, ordered for summoning all the defendants except defendants No. 11 to 14, 16 and 17. Second time summons of defendants No. 1 to 3 and 5 to 9 received unserved and trial court ordered for issuing fresh summons to them on new addresses vide order dated 26.5.2000 but the counsel for plaintiff never complied the said order and straight away requested for substituted service and trial court in a casual manner ordered for the same. 13. From the above it is clear that the trial court had not taken due care and diligence in getting the summons served upon the petitioners and ordered for substituted service in very casual manner. Before ordering substituted service the court should have record its satisfaction that the conditions on which alone it can be ordered exist. In the absence of such satisfaction recorded, the trial court illegally ordered for substituted service while taking recourse of Order 5 Rule 20 of CPC. Before ordering substituted service the court should have record its satisfaction that the conditions on which alone it can be ordered exist. In the absence of such satisfaction recorded, the trial court illegally ordered for substituted service while taking recourse of Order 5 Rule 20 of CPC. The contention of the counsel for the respondent No. 1 that, since summons upon Iqbal Kaur and Harmeet Singh were duly served, it should be presumed that other defendants namely petitioners No. 2, 3 and 5 to 11 are also duly served, cannot be accepted, as there cannot be any presumption under the provision of Order 5 Rule 11 that if one defendant is served the other defendants should be deemed to have been served. As per Order 5 Rule 11 where there are more than one defendant in a suit, the service of the summons has to be done on each defendant individually even though the interests of the defendants may be common. The other contention of Mr. Aggarwal, learned counsel for the respondent that, the service upon the petitioners-defendants will be deemed to be sufficient in the suit No. 6/99 of Civil Judge (Junior Division) Sri Vijaynagar, as the summons were duly published in widely circulated "Seema Sandesh" daily newspaper, is also not liable to be accepted because from the reports of the process server it is clear that the unserved defendants are residing at different places, even out of State of Rajasthan, then how a summon published in a limited edition of a daily newspaper can be noticed by all the defendants. Moreover before ordering substituted service the court should have resorted to procedure laid down in Order 5 Rule 17 and when after resorting the said procedure if the persons are not served then only after recording its satisfaction, as provided under Order 5 Rule 20, the court can pass order for substituted service. In the present case the summons of some of the defendants have not been furnished bearing their new addresses and thereafter not even issued but the trial court without even noticing this fact ordered for substituted service. In the present case the summons of some of the defendants have not been furnished bearing their new addresses and thereafter not even issued but the trial court without even noticing this fact ordered for substituted service. The procedure provided under Order 5 Rule 17 and Order 5 Rule 20 has completely been ignored by the trial court and therefore, it cannot be held that the service upon the petitioners defendants was sufficient for the purpose of civil suit No. 6/99 of Civil Judge (Junior Division) Sri Vijaynagar. Another contention of counsel for respondent Mr. Aggarwal that, as all the petitioners have given their addresses before the trial court, the appellate court and this court as Chak 2 BLD, it will be presumed that all the petitioners are residents of Chak 2 BLD, is also liable to be rejected for the reason that the petitioners may have joined themselves for filing application under Order 9 Rule 13 for setting aside ex-parte decree dated 6.11.2003 or for filing appeal against the order dated 25.3.2004 or for preferring this writ petition, but in no circumstance it can be concluded that all the petitioners are residing in Chak 2 BLD in the absence of any other concrete proof to this effect. In the facts and circumstances of this case it is clear that the learned trial court has erred in rejecting the application under Order 9 Rule 13, preferred by the petitioners for setting aside ex-parte decree dated 6.11.2003 passed in civil suit No. 6/99, vide order dated 25.3.2004 (Annexure 4) and appellate court has also wrongly dismissed the appeal of the petitioners vide order dated 13.10.2006 (Annexure 5) without application of mind. From the record, one more thing is revealed that though the trial court while registering the suit No. 6/99 on 15.3.1999 has specifically observed that the question of limitation is to be examined at later stage out while decreeing the suit the trial court had not taken any note of this fact. Section 3 of the Limitation Act, 1963 mandates that the court would not exercise its jurisdiction for any relief in favour of a party if the same is found to be barred by limitation. The Statute obligated upon the Court of law to consider as to whether a suit is barred by limitation or not. Section 3 of the Limitation Act, 1963 mandates that the court would not exercise its jurisdiction for any relief in favour of a party if the same is found to be barred by limitation. The Statute obligated upon the Court of law to consider as to whether a suit is barred by limitation or not. In the event it was found that the suit was barred by limitation, the Court had no jurisdiction to pass a decree. The Hon'ble Supreme Court in Bogidhola Tea & Trading Co. Ltd. & Anr. (supra) has specifically held that the court should not pass a decree without examing that whether the suit is filed within the limitation or not. 14. In the above mentioned circumstances, the writ petition is allowed. The order dated 25.3.2004 (Annexure 4) passed by the Civil Judge (Junior Division) Sri Vijaynagar District Sri Ganganagar and the judgment and order dated 13.10.2006 (Annexure 5) passed by the learned Addl. District Judge, Rai Singh Nagar in appeal No. 7/04 are hereby quashed and set aside. The application preferred by the petitioners under Order 9 Rule 13 read with Section 151 CPC is allowed and the ex-parte decree dated 6.11.2003 (Annexure 2 passed by the Civil Judge, Junior Division, Sri Vijaynagar in suit No. 6/99 is also set aside. The trial court is directed to proceed with the trial afresh. However, it is made clear that there is no need to issue fresh summons to the petitioners and the petitioners are directed to appear before the trial court personally or through their counsel on or before 15.2.2013. The summons for other defendants be issued as per procedure if they are not represented by their counsel. It is made clear that even if the petitioners fails to put their appearance before the trial court as directed by this Court, the trial court is free to proceed with the trial of the suit in accordance with law. The record of the lower courts, requisitioned earlier vide order dated 3.3.2008 be sent back forthwith. However in the facts and circumstances of the case there is no order for costs.