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2014 DIGILAW 1458 (PNJ)

Gurmam Kaur v. Kulwant Singh

2014-10-28

RAKESH KUMAR JAIN

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JUDGMENT : Rakesh Kumar Jain, J. 1. The respondent filed the suit for possession by way of specific performance of the agreement to sell dated 24.07.2002 regarding the suit land, which was agreed to be sold for a sum of Rs. 2,50,000/- out of which Rs. 2 lacs were received by the petitioner as earnest money and the balance was to be paid on the date fixed for execution of the sale deed, i.e. 15.12.2003. The defendant Tara Singh was served through munadi, but no-one appeared on his behalf and was proceeded against ex-parte. The Trial Court decreed the suit on 14.10.2004 after recording the ex-parte evidence of the plaintiff, directing the defendant to execute the sale deed in favour of the plaintiff within two month on payment of the balance sale consideration. The defendant filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short "CPC") for setting aside the ex-parte decree alleging that he had never been served in the suit nor he ever refused to receive the summons. The said application was contested by the plaintiff by filing reply and the Trial Court, vide its order dated 12.04.2013, dismissed the application after appreciation of the evidence led by the parties on the issue as to whether there exists sufficient ground to set aside the judgment and decree dated 14.10.2004. The appeal filed by the defendant against the order of the Trial Court dated 12.04.2013 was also dismissed on 23.10.2013 and hence, the present revision petition has been filed. 2. Counsel for the petitioners has submitted that the defendant was not served in person as there is no service through registered post and the service through munadi is the last mode of service which can be resorted to when the defendant is found avoiding service. In support of his submissions, he has relied upon a decision of this Court in the case of Dhana Vs. Smt. Mewa Devi, (2011) 2 RCR (Civil) 765. 3. On the other hand, learned counsel for the respondent has submitted that the learned Trial Court had recorded an order on 17.03.2004 about the receipt of summons without service with the report that the defendant has been evading the service, therefore, it was decided to effect service upon him through affixation and munadi. The munadi was duly effected and on 10.06.2004 and the defendant was proceeded against ex-parte. The munadi was duly effected and on 10.06.2004 and the defendant was proceeded against ex-parte. It is further submitted that the applicant-petitioners had examined Dharam Singh Chowkidar as AW1 who has tendered his affidavit alleging that the Process Server never came to their village for the purpose of service upon the defendant, but in his cross-examination, he admitted that a person came from the Court who took his signatures on the summons for getting the service of Tara Singh effected, which was accepted by the Court as an admission qua report Ex. R4. 4. On the other hand, the respondent had examined the Process Server as RW1 who proved the fact about the munadi and also his report on the summons as Ex. R4. Jang Singh, Process Server had proved the fact that the munadi was carried out at a public place and he also affixed the copy of the summons on the house of the defendant. It is also observed that the applicant, appearing as AW1, has not denied the due service of their father by way of affixation which is clear from his cross-examination. 5. Order 5 of the CPC deals with issue and service of summons. Order 5 Rule 9 of the CPC prescribes that service of summons may be effected by delivering or transmitting a copy thereof by registered post acknowledgment due, which shall be at the expense of the plaintiff, whereas Order 5 Rule 17 of the CPC can be invoked when the defendant refuses to accept the summons or cannot be found. In case the defendant conceals himself at the time of effecting service of summons, the Serving Officer is required to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides and shall then return the original to the Court with the 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. 6. 6. In order to prove the factual position of service effected under Order 5 Rule 17 of the CPC, the Serving Officer can be examined under Order 5 Rule 19 of the CPC and if the defendant is not being served by way of ordinary process, the Court may allow substituted service as per Order 5 Rule 20 of the CPC. 7. In the present case, there is a report of service dated 14.03.2004, duly signed by Dharam Singh Chowkidar as a witness because at the first instance, the Court had sent the summons through Process Server for effecting service upon the defendant personally. Order 5 Rule 9 of the CPC regarding service by way of registered post is an option with the Court, but the Court can always serve the defendant through the Process Server who delivers the summon of the Court to the defendant in person. Initially, on 22.01.2004, the Court had recorded that the defendant could not be served as the summons were received back un-served. Again the defendant was ordered to be served on 17.03.2004 by filing of PF. The Process Server has recorded in his report that Tara Singh had seen him and concealed himself in his house, meaning thereby he refused to take the summons or evaded service. The said report is duly witnessed by Dharam Singh Chowkidar. On 17.03.2004, the Trial Court had recorded in its zimni that summons sent to the defendant were received back with the report of evading service and in those circumstances, the Court had found that the defendant cannot be served in ordinary process and ordered the summons to be affixed on the outer door or some conspicuous part of his ordinary residence and that he be served through munadi. Since Dharam Singh Chowkidar, who stepped into the witness box as AW1, has indirectly admitted that a person came from the Court and took his signatures for the purpose of getting the service effected upon the defendant, therefore, it cannot be said that there was no effort made by the Court for effecting service upon the defendant personally at the first instance before resorting to the mode of substituted service. Thus, the judgment relied upon by the learned counsel for the petitioners in Dhanna's case (supra) is not inapplicable to the facts and circumstances of this case. Thus, the judgment relied upon by the learned counsel for the petitioners in Dhanna's case (supra) is not inapplicable to the facts and circumstances of this case. In view of the concurrent finding of fact recorded by both the Courts below, I do not find any reason to interfere in this revision petition.