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Rajasthan High Court · body

2015 DIGILAW 1987 (RAJ)

Amit Pabuwal v. Anand Swaroop Gaur

2015-12-01

BELA M.TRIVEDI

body2015
JUDGMENT 1. With the consent of learned counsels for the parties, the appeal is heard finally at the admission stage. 2. The present misc. appeal filed by the appellant-defendant under Order XLIII Rule 1 (d) of CPC arises out of the order dated 17.10.2013 passed by the Additional District Judge, Shahpura, District Jaipur (hereinafter referred to as “the trial court”) whereby the trial court has dismissed the application being No.2/2005 filed by the appellant-applicant under Order IX Rule 13 of CPC for setting aside the exparte decree dated 28.01.2005 passed in the Civil Suit No.11/2002, filed by the respondents-plaintiffs seeking specific performance of an oral agreement alleged to have been made by the appellant-defendant in respect of the suit lands and for damages. 3. The short facts giving rise to the present appeal are that the respondents-plaintiffs had filed the civil suit against the appellant-defendant seeking specific performance of the oral agreement allegedly made by the appellant somewhere in the year 2000. In the said suit, the trial court treating the service of summons to the appellant by a registered A.D. sent at the address of the appellant's business premises, as sufficient service, proceeded exparte against him and passed the decree on 28.01.2005. According to the appellant, he was never served with any summons either at his residential address or at his business address, and he came to know about the said exparte decree, only on 02.04.2005, when he received the notice of the Advocate Shri Ravi Shankar Agrawal of the respondents-decree holders. He, therefore, filed the application under Order IX Rule 13 for setting aside the exparte decree passed in the suit. The said application has been dismissed by the trial court vide the impugned order against which the present appeal has been filed. 4. Learned senior counsel Mr. N.K. Maloo for the appellant-defendant taking the Court to the record of the suit, submitted that the appellant-defendant was not served in the suit either at the residential address or at the business address. Relying upon the endorsement of LWA put on the envelop by the postman on 12.12.2002, he submitted that the trial court while dismissing the application of the appellant under Order IX Rule 13 by the impugned order, has committed gross error in treating such endorsement as 'refusal' and the proper service. Relying upon the endorsement of LWA put on the envelop by the postman on 12.12.2002, he submitted that the trial court while dismissing the application of the appellant under Order IX Rule 13 by the impugned order, has committed gross error in treating such endorsement as 'refusal' and the proper service. He further submitted that the appellant and his wife had specifically stated in their respective evidence in the proceedings under Order IX Rule 13 that they had not received any summons at their business premises also, and that there was no person named Mr. Rawat working at their firm whose signature appear on the A.D. slip dated 30.11.2002. Relying upon the various decisions of the Supreme Court and the High Court, he submitted that since the appellant-defendant was not served with any summons in the suit, the present appeal deserves to be allowed. However, the learned counsel Mr. Mahendra Goyal for the respondents submitted that the appellant himself had shown his business address of Arun Industries in the application filed by him before the Income Tax Department in the year 2000 (Exhibit-20A), which was the same address mentioned by the respondents-plaintiffs in the cause title of the suit. He further submitted that the summons sent to the appellant at his business address through registered post, was received back duly signed by one Mr. B.S. Rawat, and the summons sent at his residential address had returned with the postal endorsement LWA, which has been rightly treated as proper service by the trial court. Placing reliance on the decision of the Supreme Court in case of M/s. Madan & Co. versus Wazir Jaivir Chand, AIR 1989 Supreme Court 630 (1), he submitted that the endorsement LWA i.e. left without address should be considered as proper service. Lastly, he submitted that as per the second proviso to Order IX Rule 13, the Court should not set aside the exparte decree merely on the ground that there was an irregularity in the service of the summons. 5. Before adverting to the submissions made by the learned counsels for the parties, the Court is constrained to take serious notice that the courts below without adhering to the provisions contained in the CPC with regard to the service of summons proceed with the suit exparte, placing the litigants to great hardships and causing multiplicity of proceedings. 5. Before adverting to the submissions made by the learned counsels for the parties, the Court is constrained to take serious notice that the courts below without adhering to the provisions contained in the CPC with regard to the service of summons proceed with the suit exparte, placing the litigants to great hardships and causing multiplicity of proceedings. It is needless to say that the courts are bound to follow the procedure laid down in the CPC, and to make sure whether the defendants are properly served before proceeding exparte in the suits. It is very unfortunate that though elaborate procedure has been laid down in Order V for the issue and service of summons, the suits are being decided exparte in a very casual manner, as has been done in the instant case also. The application under Order IX, Rule 13 has also been decided in very casual manner without verifying as to how the summons were sought to be served and how the proper service was effected on the appellant-defendant in the suit. The postal endorsement of LWA i.e. left without address has been treated as 'refusal' by the trial court, without appreciating the difference between the two. Such a casual and careless approach on the part of the courts below is strongly deprecated. It hardly needs to be said that the endeavour of the courts should be to do the substantial justice in accordance with law and not to dispose of the cases in casual manner. 6. Having said that let us examine the provisions of Order V with regard to the service of summons. Rule 9 of the said Order V, deals with delivery of summons by the court, according to which, where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. Sub-rule (3) of Rule 9 states that the service of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of document provided by the rules made by the High Court. The combined reading of the said sub-rule (1) and sub-rule (3) of Rule 9 envisages that the summons at the first instance has to be sent to the proper officer to be served by him or by one of his subordinates, at the place where the defendant resides. Additionally, the service of summons may be made by any of the modes as mentioned in sub-rule (3) of the said Rule. The use of the word 'shall' in sub-rule (1) makes it mandatory for the Court to send the summons to the proper officer for being served to the defendant, and use of the word 'may' in sub-rule (3) makes it optional on the part of the Court to serve the summons by any other modes as mentioned in the said sub-rule. Rule 9A of the said order also gives one more option to Court to permit the plaintiff to effect the service of summons on the defendant, in addition to the service of summons under Rule 9. Hence, the modes of service of summons prescribed in sub-rule (3) of Rule 9 and in sub-rule (1) of Rule 9A are in addition to the first mode prescribed in sub-rule (1) of 9, which makes it obligatory on the part of the Court to direct the service of summons through proper officer of the Court for being served to the defendant, where he resides. It is pertinent to note that as per Rule 13 of Order V, in a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who at the time of service, personally carries on such business or work for such person within such limits, would be deemed good service. Rule 15 permits the summons to be served on the adult member of the defendant family, where in any suit the defendant is 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. Rule 17 deals with the procedure when the defendant refuses to accept service or cannot be found by the serving officer after using due and reasonable diligence. In such cases the serving officer can affix copy of 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 then he has to return the original to the Court from which the summons was issued, with a report endorsed thereon or annexed thereof 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. At this juncture, Rule 19 of Order V is also relevant to be mentioned, which states that 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 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. 7. In view of the above provisions, it is not only obligatory on the part of the Court to direct the service of summons through proper officer of the Court but the proper officer is also obliged to follow the procedure as mentioned in Rule 17, in case when the defendant refuses to accept the service or cannot be found after all due and reasonable diligence. When such report under Rule 17 is made by the serving officer, the Court also is required to follow the procedure under Rule 19 by declaring that the summons has been duly served or by ordering such other service as it thinks fit. Even when, the Court permits the plaintiff to serve the defendant either by registered post acknowledgment due, as contemplated under Rule 9 (3), the Court must follow the procedure as laid down in Rule 9 (5), for the purpose of satisfying itself, whether the summons has been duly served on the defendant or not before proceeding exparte in the suit. 8. In the instant case, it appears from the order sheets drawn by the trial court that on 26.11.2002, though the trial court had issued summons to the defendant to be served by 'dasti' service, by a registered A.D., by courier and by any other permissible mode of service, the Court did not send the summons to the proper officer i.e. the serving officer of the court as contemplated in Order V Rule 9 (1). It was absolutely a vague order without mentioning as to by which approved courier and by which other permissible mode the summons was to be served. The trial court on 07.12.2002 again passed such vague order for service at the defendant's residential address. Thereafter on 16.12.2002, the trial court without verifying as to whether the defendant was properly served or not in view of the provisions contained in Order V of CPC, directed to proceed exparte against the defendant in the suit. 9. Now, even if the postal endorsement made on the envelop addressed at the so-called residential address of the defendant is seen, the same bears the endorsement 'LWA' i.e. left without address. The said endorsement by no stretch of imagination could be said to be either “refusal” on the part of the defendant nor a “proper service”. The acknowledgment due receipt of the registered post sent at the address of business premise of the defendant i.e. at M/s. Arun Emporium, bears the signatures of one Mr. Rawat, who had allegedly received the said summons on behalf of the any business of the defendant, and therefore the summons should not have been issued at the business address of the defendant, there is nothing on record to show that said Mr. Rawat, who had allegedly received the said summons on behalf of the any business of the defendant, and therefore the summons should not have been issued at the business address of the defendant, there is nothing on record to show that said Mr. Rawat was the manager or agent of the defendant authorised to receive summons on behalf of the defendant. The trial court therefore had committed gross error in treating such postal endorsements as the sufficient service of summons on the defendant, as per the order sheet dated 16.12.2002 for proceeding exparte against the defendant in the suit. The trial court ought to have verified as to whether the proper procedure was followed as contemplated under Order V before proceeding exparte in the suit more particularly in the suit seeking specific performance of the agreement in respect of the immovable property. 10. The trial court also committed gross error in treating the endorsement of LWA as refusal, while dismissing the application of the appellant-defendant for setting aside the exparte decree under Order IX Rule 13 of CPC. There was total non application of mind on the part of the trial court in treating such service as proper service while dismissing the said application. The defendant and his wife both while stepping into the witness box had stated that they were never served with the summons either at their residential address or at their business address, and that they had already left the place of residence which was mentioned on the envelop sent by registered post years back. The wife of the defendant had also categorically stated in her cross examination that no such employee named Rawat was working at firm of the defendant. The trial court however ignoring the said evidence led by the defendant had dismissed the application under Order IX Rule 13 in absolutely casual manner. 11. Though heavy reliance has been placed by the learned counsel for the respondents on the decision of Supreme Court in case of M/s. Madan and Co. Versus Wazir Jaivir Chand (supra), the same is not helpful to him. 11. Though heavy reliance has been placed by the learned counsel for the respondents on the decision of Supreme Court in case of M/s. Madan and Co. Versus Wazir Jaivir Chand (supra), the same is not helpful to him. In the said case, the Court while interpreting Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 for the purpose of deciding whether the landlord had served notice to the tenant by registered post before filing the suit for eviction, had held that the landlord had complied with the said provision by posting a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address and that once he did so and the letter was delivered to the post office, his duty was over, and it would be presumed to have been delivered at the address as per Section 27 of the General Clauses Act. It is pertinent to note that in the same breath, the Supreme Court also observed to the effect that the responsibility of postman cannot be equated with that of the process server entrusted with the responsibility of serving summons of the Court under Order V of CPC. In the instant case, the appellant having duly proved in the proceedings under Order IX, Rule 13 that he was not served with the summons of the suit, the trial court had committed an error in not setting aside the exparte decree. The second proviso to Order IX Rule 13 as pressed into service by the learned counsel Mr. Goyal for the respondents is not helpful to him, inasmuch as this is the case of non-service and could not be said to be an irregular service of summons. 12. In that view of the matter, the order dated 17.10.2013 passed in application No.2/05 as well as the exparte decree dated 28.01.2005 passed in the civil suit No.11/2002 deserve to be set-aside, and are hereby set-aside. The said suit is restored on file of the trial court is directed to decide the same in accordance with law. The parties are directed to remain present before the trial court on 15.12.2015. The appeal stands allowed accordingly. By this order, the stay application and other pending application if any, also stand disposed of. 13. Office is directed to circulate the copy of this judgment to all the officers of the subordinate courts.