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Himachal Pradesh High Court · body

2015 DIGILAW 611 (HP)

P. A. Times Industries v. Apex Marketing

2015-05-28

DHARAM CHAND CHAUDHARY

body2015
Judgment Dharam Chand Chaudhary, J. This order shall dispose of both the applications filed with a prayer to set aside the exparte judgment and decree dated 1.7.2013 on condonation of delay. 2. Suit for recovery of Rs.15,49,770/- came to be filed by M/s P.A. Times Industries, Kasauli Road, Dharampur, the non-applicant/plaintiff, against the applicant/defendant. The defendant-Company, as per order dated 9.4.2012, in ‘B’ part of the file was served with Dasti notice by way of affixation for 13.3.2012 as its Managing Director though present, however, refused to accept the notice. The defendant, therefore, was ordered to be proceeded against exparte as per the order passed on 1.6.2012 read with order dated 9.4.2012, passed in ‘B’ part of the file. 3. A co-ordinate Bench of this Court after recording exparte evidence has decreed the suit vide judgment and decree dated 1.7.2013. The judgment and decree so passed has been sought to be set aside on condonation of delay. 4. The delay as occurred in filing the application, OMP No.49 of 2014, aforesaid for setting aside the exparte judgment and decree has been sought to be condoned on the ground that the applicant-defendant came to know about the exparte judgment and decree dated 1.7.2013 passed in this suit on 14.1.2014 from one Rajesh Kumar Janak, Kishore Road, Kadam Kuan, Patna Bihar, who, in turn, was informed by one Vinay Dalamia. Mr. Dalamia was informed about the exparte decree passed in the suit by one Shri J.K. Mishra, an employee of the non-applicant/Company. The delay as occurred, therefore, is stated to be neither intentional nor deliberate and allegedly occurred owing to the circumstances beyond the control of the applicant-defendant. 5. On merits, the case pleaded in the application OMP No.49 of 14 is that the applicant-defendant was never served legally and validly in the suit. He never refused to accept the service of notice. The report to this effect submitted by the Process-server is stated to be false and manipulated one. Otherwise also, the notice allegedly was affixed on the residence of the managing Director of the applicant-defendant and not in its business premises. There is no legal and valid service in terms of Order 5 Rule 2 CPC. 6. In reply filed on behalf of the non-applicant/ plaintiff, the question of maintainability of the application for setting aside the abatement has been raised. There is no legal and valid service in terms of Order 5 Rule 2 CPC. 6. In reply filed on behalf of the non-applicant/ plaintiff, the question of maintainability of the application for setting aside the abatement has been raised. On merits, it is denied that the Managing Director of applicant-defendant has refused to accept the service. The reports Annexure P-1 and P-2 to the reply have been pressed into service in this regard. Therefore, it is submitted that no option was left except for affixation of the notice on the residential premises of the Managing Director of applicant-defendant. It is denied that the Managing Director of the applicant-defendant came to know about the decree passed in the suit on 14.1.2014. It is pointed out that the official of defendant-Company had been asking for the status of the proceedings in the suit from the employees of plaintiff-Company. Since defendant-Company was not willing to clear the dues of the non-applicant/plaintiff, it is for this reason the reports qua vacation of the rented accommodation and disconnection of electricity meter have been fabricated and falsely procured. Since the applicant-defendant refused to accept the notice, therefore, the refusal itself is to be treated as legal and valid service. The service upon the applicant is stated to be effected, in terms of the provisions contained under Order 5 Rule 2 CPC. Both applications have, therefore, been sought to be dismissed. 7. In rejoinder, the contentions to the contrary have been denied being wrong and on merits the case as set out in these applications reiterated. It is pointed out that as per reports Annexures P-1 and P-2, the service has been effected on the address of Managing Director of applicant-defendant i.e. near Sanichra Masjid, Thana Sultan Ganj, Bihar, however, as per Aadhar Card Annexure A-1, he is resident of Dargah Road, New Azimabad Colony, Sanichra, P.S. Bahadhurpur, Patna, Bihar. It is, therefore, reiterated that the Managing Director of the applicant-defendant has never been served with the notice legally and validly. 8. On the pleadings of the parties, the following issues were framed:- “1. Whether there are sufficient grounds for condonation of delay as occurred in filing the application for setting aside exparte decree passed on 1st July, 2013? OPA. 2. If issue No.1 held in affirmative, does the application disclose sufficient grounds for setting aside the ex-parte decree or not? OPA 3. Relief. 9. Whether there are sufficient grounds for condonation of delay as occurred in filing the application for setting aside exparte decree passed on 1st July, 2013? OPA. 2. If issue No.1 held in affirmative, does the application disclose sufficient grounds for setting aside the ex-parte decree or not? OPA 3. Relief. 9. The applicant-defendant in turn has produced in evidence the affidavit of its Managing Director Najmul Haque Hashmi and that of Shri Rajesh Kumar S/o late Shri Om Prakash. 10. On hearing learned counsel on both sides and also going though the records my findings on the issues so framed are as under: Issue No.1 : Yes. Issue No.2 : No. Relief : OMP (M) No.4 of 2014 allowed, however, OMP No. 49 of 2014 dismissed per operative part of the judgment. Issue No. 1. 11. The application, OMP No.49 of 2014, filed with a prayer to set aside the exparte decree, is time barred. An application of this nature under Article 123 of the Limitation Act could have been filed within thirty days from the date of decree. Here the decree has been passed on 1.7.2013. The application has been filed on 10.2.2014. The delay actually occurred has neither been calculated and mentioned in the application by the applicant-defendant nor by the Registry at the time of scrutiny of the application. Any how, the delay as occurred in filing the application is more than six months, after deduction of the statutory period of thirty days prescribed for filing of an application of this nature. The explanation as forth coming is that the applicant-defendant was not aware of the passing of the judgment and decree on 1.7.2013 nor the pendency of the suit. It is on 14.1.2014, he was informed about the exparte decree passed by this Court in the suit on 1.7.2013 by Rajesh Kumar Janak, Kishore Road, Kadam Kuan, Patna, Bihar. Said Rajesh Kumar was informed by one Vinay Dalamia. Said Shri Dalamia had received the information from one J.K. Mishra, an employee of the non-applicant/plaintiff. 12. The response to such pleadings in the application OMP (M) No.4 of 2014 under Section 5 of the Limitation Act, however, is that the plaintiff had due knowledge and notice of the pendency of the suit and also the exparte judgment and decree passed by this Court. 12. The response to such pleadings in the application OMP (M) No.4 of 2014 under Section 5 of the Limitation Act, however, is that the plaintiff had due knowledge and notice of the pendency of the suit and also the exparte judgment and decree passed by this Court. In support of such contentions, it has been submitted that the applicant-defendant remained in constant touch of the employee of the non-applicant/plaintiff throughout during the course of proceedings in the suit and obtaining information qua the progress therein at each and every stage. 13. If coming to the evidence, the same has been produced by way of affidavit. Mr. Najmul Haque Hashmi, Managing Director of the applicant-defendant in his own affidavit has said all whatever averred in the application. Also that he was never served in the suit at his residential address as find mentioned in the Aadhar Card annexed to the rejoinder and on that address the Process-Server never served him with the notice of the suit. Shri Rajesh Kumar, in the affidavit sworn in by him, has supported the applicant’s version qua his having come to know about exparte judgment and decree on 14.1.2014 because according to Mr. Rajesh Kumar, it is he, who informed the applicant-defendant in this regard. He came to know about the exparte judgment and decree from one Vinay Dalmia, who was informed by one J.K. Mishra, an employee of non-applicant/plaintiff. 14. In rebuttal of the evidence so produced by the applicant-defendant, the non-applicant/plaintiff has produced affidavit of one Mr. Vinod Rana, its Senior Manager (Accounts). Mr. Rana has stated that the pendency of the suit was well within the notice of the applicant-defendant because he always remained in touch with non-applicant and its officials during the pendency of the suit. According to him, the applicant-defendant has cooked up a false story just to get the exparte decree set aside. He allegedly has blown hot and cold in the same breath i.e. in the affidavit filed in support of the application under Order 9 Rule 13 and Section 5 of the Limitation Act the address given is; “R/o Sandalpur Behind Sanichra Mandir, near Mobile Tower Mahendru, Patna, Bihar”; whereas in the affidavit filed in support of the rejoinder, the address given by its Managing Director is; “R/o Dargah Road, New Azimabad Colony, Sanichra, Police Post Bahadhurpur, Patna, Sampatchak, Patna, Bihar-800006”; altogether different. 15. Mr. 15. Mr. B.S. Chauhan, learned counsel has urged that sufficient grounds are made out from the perusal of the application justifying the condonation of delay. 16. Mr. I.S. Narwal, learned counsel representing the non-applicant/plaintiff has, however, repelled the submissions so made and has come forward with the version that what to speak of sufficient cause, the application, according to him, does not disclose any ground warranting condonation of the inordinate delay as occurred in filing the application for setting aside the exparte judgment and decree. 17. As noticed supra, there is delay of over six months having occurred in filing the application for setting aside the exparte decree. Section 3 of the Limitation Act provides that no Court shall have the jurisdiction to entertain the suit and application if the same has been filed after the expiry of period of limitation. The period of limitation for filing an application for setting aside the exparte Order is thirty days from the date of knowledge of the decree. Here a separate application OMP (M) NO. 4 of 2014 has been filed with a prayer to condone the delay. It is well settled that the delay howsomuch long can be condoned, if sufficient cause is found to have been shown from the perusal of the pleadings and also the evidence available on record. 18. It is well settled at this stage that a party seeking the condonation of delay has to show “sufficient cause” warranting condonation of delay. The expression ‘sufficient cause’ should be interpreted liberally and in a meaningful manner to sub-serve the ends of justice. Also that the expression ‘every day’s delay must be explained’ should be applied in a rational common sense by taking pragmatic approach to do substantial justice. The Courts have wide discretion in the matter of condonation of delay; however, the same should be exercised judiciously and only in a case where sufficient cause is found to be shown. 19. In the case in hand although it cannot be believed that the Managing Director of the applicant-defendant had no knowledge about the pendency of the suit, however, to my mind he had no knowledge of passing of the decree on 1.7.2013. 19. In the case in hand although it cannot be believed that the Managing Director of the applicant-defendant had no knowledge about the pendency of the suit, however, to my mind he had no knowledge of passing of the decree on 1.7.2013. Had he been in the notice and knowledge of passing of the decree dated 1.7.2013, would have not remained sit over the matter for a period over seven months because he was not going to be benefited in any manner whatsoever by delaying the institution of the application for setting aside the exparte decree. The explanation as set forth in the application for condonation of delay finds support from his own affidavit and also that of Rajesh Kumar produced in evidence. It seems that after having come to know about the exparte judgment and decree passed against the applicant-defendant, its Managing Director, rushed to Shimla and applied for certified copy of the judgment on 17.1.2014, through Mr. Manish Thakur, Advocate. It is apparent so from the perusal of the certified copy of the judgment filed along with the application for setting aside the exparte decree. The application having been filed on 10.2.2014 in the Registry is, therefore, within the period of 30 days from the date of knowledge. The delay as occurred in filing the application for setting aside the exparte judgment and decree, therefore, stands satisfactorily explained and as such is hereby ordered to be condoned. This issue is answered in affirmative i.e. in favour of the applicant-defendant. Issue No. 2. 20. Now coming to the application filed for setting aside the exparte decree, the only ground raised is that the applicant-defendant was not aware of the pendency of the suit in this Court as he was never served with the notice, in accordance with law. The response to such averments in the application OMP No. 49 of 2014, however, is denial, as according to non-applicant/plaintiff, the Managing Director of applicant-defendant remained throughout in touch with its employees, hence the pendency of the suit was well within the notice of its Managing Director. It has also been pleaded in reply to the application that the Managing Director of the applicant-defendant has refused to accept the notice issued Dasti when Process-Server visited him at his residence and as a result thereof the notice was affixed in the house. 21. It has also been pleaded in reply to the application that the Managing Director of the applicant-defendant has refused to accept the notice issued Dasti when Process-Server visited him at his residence and as a result thereof the notice was affixed in the house. 21. If coming to the evidence, Shri Najmul Haque Hashmi, the Managing Director of the applicant-defendant has only stated in his affidavit that he was never served with the notice at his business premises nor at residential address. According to him, the report made by the Process-Server is false and manipulated. The service by way of affixation is also stated to be carried out on wrong address. This is the only evidence, the applicant-defendant produced to substantiate this aspect of the matter. Now coming to the evidence produced by the non-applicant/plaintiff, its Senior Manager, Mr. Vinod Rana has stated that on the face of the report made by the Process-Server, the Managing Director of the applicant-defendant has refused to accept the service of notice. As a result thereof, copy of the notice had to be affixed on his house. The applicant-defendant, therefore, had due knowledge and notice of the pendency of the suit and also the date fixed and as such has rightly been proceeded against exparte. 22. It is also averred that the applicant-defendant remained in touch with non-applicant and its officials throughout during the pendency of the suit. The applicant’s version that he has not been served on correct address is stated to be false for the reason that he has blown hot and cold in the same breath as in the affidavit filed in support of the applications, he has given some different address whereas in the affidavit filed in support of the rejoinder some other address. Mr. Rana has therefore, further stated that the applicant-defendant has not only played hide and seek with the plaintiff but with this Court also. 23. Now coming to the arguments addressed, according to Mr. Chauhan, on account of invalid service, the applicant-defendant could have not been treated to be served. Otherwise also, the fixation of notice not accompanied by plaint cannot be treated to be a valid service. 24. Mr. Narwal, however, has emphasized that no ground is made out for setting aside the exparte decree and the application deserves dismissal. 25. Chauhan, on account of invalid service, the applicant-defendant could have not been treated to be served. Otherwise also, the fixation of notice not accompanied by plaint cannot be treated to be a valid service. 24. Mr. Narwal, however, has emphasized that no ground is made out for setting aside the exparte decree and the application deserves dismissal. 25. Order 9 Rule 13 CPC makes it crystal clear that the Court, if satisfied that the summons was not duly served or that the defendant was prevented by sufficient cause from putting appearance on the date fixed, the Court may order to set aside the exparte decree. 26. It is well settled at this stage that an exparte decree could only be set aside, if sufficient grounds are found to be made out. The summons were not accompanying the copy of the plaint may be an irregular service of summons, however, does not constitute a ground to set aside the exparte decree. The apex Court in Sushil Kumar Sabharwal versus Gurpreet Singh & Others, (2002) 5 SCC 377 , has held that exparte decree cannot be set aside merely on the ground that there has been an irregularity in the service of the summons, if the Court is satisfied that the defendant had due notice of the date of hearing and had sufficient time to appear. Relevant portion of this judgment reads as follows:- “11. The High Court has overlooked the second proviso to rule 13 of order 9 Code of Civil Procedure, 1908, added by the 1976 amendment which provides that no court shall set aside a decree passed exparte 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 plaintiffs 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 inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim which he did not avail and utilise.” 27. Now coming to the evidence discussed hereinabove, the report of Process-Server Annexure P-2 to the reply filed by non-applicant/plaintiff, makes it crystal clear that the Process Server firstly went to the commercial address of applicant-defendant i.e. A.H. Complex, Exhibition Road Patna, Bihar. He found the premises locked. The proprietor of “Vatika Slash Enterprises” in western side of the business premises of the applicant-defendant had informed the Process-Server that the defendant had closed the business at that place and had vacated that premises also. He has also given the residential address of the Managing Director of the defendant-Company i.e. Near Sanishchra Maszid, Police Station Sultanganj, Patna. The Process Server went to the residential house of the Managing Director on the address so disclosed. As per the report, it was a cream-white coloured house. Shri R.S. Hashmi, father of the Managing Director of the defendant-Company met the Process-Server there. The Managing Director of the applicant-Company, Mr. Najmul Haque Hashmi, was called. He came to the Process-Server. He was shown the notice. The Process-Server requested him to receive the copy of the notice and issued the receipt under his signature. The Managing Director, however, refused to accept the copy of the notice and also issuance of the receipt. According to the Process-Server, he, therefore, was compelled to affix the copy of the notice on the grill of the door of the house of the Managing Director. The report further reveals that the Process-Server had to witness the report himself because Amit Kumar and Ashok Kumar present there refused to witness the service of the notice upon the Managing Director of the applicant-defendant. 28. The report Annexure P-2 so submitted by Process-Server has also been verified by the Registrar of the Civil Court, Patna, as per the endorsement made by the Registrar under his signature. 28. The report Annexure P-2 so submitted by Process-Server has also been verified by the Registrar of the Civil Court, Patna, as per the endorsement made by the Registrar under his signature. The report alone is sufficient to come to the conclusion that the defendant had due knowledge and notice of the pendency of the suit and also that the same was fixed in the Court on 13th March, 2012. He, however, opted for not accepting the copy of the notice and to put in appearance in this Court on the date fixed and may be with a motive to play hide and seek with the Court. The notice was issued dasti because initially the notices issued, through ordinary mode and registered AD post, were received back undelivered with the report that the premises were found locked. 29. True it is that the applicant-defendant had vacated the place of its business as per address given in the plaint because Process-Server has also stated so in the report Annexure P-2. The fact, however, remains that the Process-Server when visited the residential place of the Managing Director of the applicant-defendant, he refused to accept the notice. The plea that he has not been served on the correct address is palpably false because had the residential address of Najmul Haque Hashmi aforesaid was “Dargah Road, New Azimabad Colony, Sanichra, Police Post Bahadhurpur, Patna”, why in the affidavit filed in support of the application he has given his address as “Sandalpur Behind Shanichra Mandir, Near Mobile Tower Mahendru, Patna”. It is crystal clear that in order to wriggle out from the exparte judgment and decree, he has manipulated his address as given in the affidavit filed in support of the rejoinder. Though in Adhar Card Annexure A-1 filed with the rejoinder, this address finds mentioned therein, however, it is not known as to when the Aadhar Card was prepared. There is also nothing to show that after issuance of Aadhar Card, he had not changed his place of residence. 30. On the other hand, the report submitted by the Process-Server, who not only mentioned the colour of the house of the Managing Director of the applicant-defendant, but also the name of his father present there, cannot be disbelieved. There is also nothing to show that after issuance of Aadhar Card, he had not changed his place of residence. 30. On the other hand, the report submitted by the Process-Server, who not only mentioned the colour of the house of the Managing Director of the applicant-defendant, but also the name of his father present there, cannot be disbelieved. Otherwise also, the Process- Server being a public servant cannot be said to have any enmity or any grudge with the applicant-defendant leading to manipulate the report. Rather he, being a public servant, every correctness and sanctity is attached to the report Annexure P-2, he submitted. As generally is now the trend of avoiding the processes issued by the Courts of law, the Managing Director of the applicant-defendant also seems to have avoided the service of the notice intentionally and deliberately and may be with a motive to hamper the proceedings in the suit. Therefore, no ground for setting aside the exparte decree is made out from the record. The application OMP No.49 of 2014, therefore, deserves dismissal. This issue is accordingly decided in negative i.e. against the applicant-defendant. Relief. 31. In view of my findings on both issues hereinabove, application OMP (M) No. 4 of 2014 succeeds and the same is accordingly allowed. Consequently, the delay as occurred in filing the application, OMP No. 49 of 2014, for setting aside the exparte order is hereby ordered to be condoned, whereas application, OMP No. 49 of 2014, fails and the same is accordingly dismissed as no ground for setting aside the exparte decree is made out. Both the applications stand disposed of accordingly.