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2016 DIGILAW 455 (GAU)

Laxmi Corrugated Box Manufacturing (Pvt. ) Ltd. v. Raj Kumar Jain

2016-05-24

N.CHAUDHURY

body2016
JUDGMENT : Correctness of the order dated 18.02.2005 passed by learned Civil Judge No. 3 (Senior Division), Kamrup at Guwahati in money suit No. 10/2004, has been called in question in the present application filed under Article 227 of the Constitution of India. By that order, the learned trial court rejected the application filed by the defendant No. 1 for setting aside order to proceed ex parte against the said defendant. It was the case of the defendant No. 1 that the plaintiff in the plaint wrongly described the address of the defendant No. 1 to be the address of the defendant No. 2 and by serving notice on defendant No. 2 made a claim that services were made on defendant No. 1. The learned trial court accepted the service report and proceeded to try the suit ex parte against the defendant No. 1 by his order dated 30.09.2004. Subsequently, having come to know about pendency of the suit, the defendant No. 1 appeared before the learned court and filed an application on 16.11.2004 praying for setting aside the order dated 30.09.2004 and craved a leave to file written statement. When the application filed on 16.11.2004 remained pending, the defendant No. 1 filed a written statement on 12.01.2005 along with yet another application for accepting the written statement on record. The plaintiff filed objection against both the petitions and the learned trial court by order dated 18.02.2005 arrived at the finding that notice was duly served on the defendant No. 1 and so earlier order dated 30.09.2004 deciding to proceed ex parte against defendant No. 1 cannot be called back. This order passed on 18.02.2005 is under challenge in the present revision petition. 2. I have heard Mr. B Chakraborty, learned counsel for the petitioner. None appears for the opposite party although the names of learned counsel have been duly shown in the cause list. I have perused the lower court records particularly to see the documents filed by the plaintiff at the time of presentation of the plaint. 3. Mr. 2. I have heard Mr. B Chakraborty, learned counsel for the petitioner. None appears for the opposite party although the names of learned counsel have been duly shown in the cause list. I have perused the lower court records particularly to see the documents filed by the plaintiff at the time of presentation of the plaint. 3. Mr. B Chakraborty, learned counsel for the petitioner would argue that the lease agreement on the basis of which a contractual relationship was established between the plaintiff and the defendant No. 1 was filed by the plaintiff along with the list of documents and a perusal of lease deed dated 22.11.1991 would show that the address of the petitioner company was as follows: “M/S LAXMI CORRUGATED BOX MANUFACTURERS PVT LIMITED having its Registered Office at Uzanbazar, Guwahati-1, represented by Sri. M.P. Narsana, Director of the Company.” 4. He further argues that in the legal notice dated 18.09.1998 sent to the defendant No. 1 Company was in the address of his registered office at Jaiguru, Amingaon, Guwahati-781031. In neither of the documents produced by the plaintiff at the time of presentation of the plaint, there was any mention anywhere that defendant No. 1 is under the care of the defendant No. 2 which is a different and distinct company. Yet, the plaintiff in the plaint described the defendant No. 1 to be under care of the defendant No. 2 and took steps accordingly for service of notice. An employee of defendant No. 2 is stated to have received notice on behalf of the defendant No. 2 as well as the defendant No. 1. Calling attention of the court to the service report available on record, Mr. Chakraborty would argue that a perusal of the service report at page 42 of the LCRs makes it clear that one unnamed employee of the defendant No. 2 had received notice on behalf of defendant 2 as well as the defendant No. 1. There is no mention anywhere in the report of the process server that the said person was duly authorised by the defendant No. 1 to accept notice or was an agent of the defendant No. 1. That being the condition, the learned trial court committed error in not considering the report of the process serve and the documents presented by the plaintiff himself on record at the time of presentation of the plaint. That being the condition, the learned trial court committed error in not considering the report of the process serve and the documents presented by the plaintiff himself on record at the time of presentation of the plaint. Had the learned trial court perused the records and had the aforesaid documents been perused in that event, the impugned order dated 30.09.2004 would have been called back and the defendant No. 1 would have been given opportunity for filing written statement. The same not having been done, jurisdictional error has been occasioned to the prejudice of the defendant No. 1 and thus, the revision petition is liable to be allowed. 5. Mr. B Chakraborty, learned counsel for the petitioner, has placed reliance on the judgment of the Division Bench of this court in the case of Jagadish Prasad Khakalia v. Firm Jesraj Talakchand Lalchand reported in AIR 1954 ASSAM 223. In paragraph 4 of this judgment, the Division Bench of this court held that when there is no evidence that the so-called Manger or anyone else was authorised to accept notice on behalf of a party, service on him is not in accordance with the provision of Rule 12 of Order V. Paragraph 4 of this judgment is quoted below for ready reference:- “4. The second ground taken by the learned Subordinate Judge also does not appeal to us. The provisions of Order 9, Rule 13, are specific. The rule says that “in any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it aside.; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the ex parte decree.” In this case, on the finding of the learned Subordinate Judge himself, the service was by affixing a copy of the notice on the doors. Rule 13 requires that the summonses should be 'duly served'; in other words, the service should be effected according to the rules laid down under Order 5 of the Code. Rule 13 requires that the summonses should be 'duly served'; in other words, the service should be effected according to the rules laid down under Order 5 of the Code. Now, Rule 12 of that order requires that wherever it is practicable, service shall be made on the Defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. In this case, the peon's report shows that the Defendant had left for Shillong and that the peon took the notice to the Manager of the Defendant and then served it by affixing a copy of it on the door of the shop-house. The peon has not been examined. The person who has been examined to prove the service on behalf of the Plaintiff says on the contrary that the Defendant-Appellant before us was present at the time of the service which was on 20-1-1950. The Applicant himself has stated that he was absent at Shillong at the time and had left everything in charge of Krishnalal so far as his Gauhati shop is concerned. There is therefore a conflict between the peon's report and the evidence of the Respondent's witness on the point,' and that seems to be the reason why the learned Subordinate Judge has accepted the position that the service was by affixing the copy of the notice in the absence of the Applicant. There is no evidence that the so-called Manager or anyone else was authorised to accept notice on behalf of the Appellant. This is not service in accordance with Rule 12 of Order 5. Indeed, it has been repeatedly pointed out that mere temporary absence is not enough to entitle the peon to serve in that manner. The peons should make an endeavour to serve the notice personally upon the Defendant which was not done in this case and therefore, we are not prepared to hold that the service was duly made in the circumstances. It may be that the Appellant had knowledge of the suit but that will; not debar him from presenting an application under Rule 13 of Order 9 for setting aside the ex parte decree, if in fact, the summonses had not been duly served. It may be that the Appellant had knowledge of the suit but that will; not debar him from presenting an application under Rule 13 of Order 9 for setting aside the ex parte decree, if in fact, the summonses had not been duly served. It has to be noticed that in this case, there were several Defendants in the suit and it is quite possible that this Appellant may have thought that there was no definite claim against him and therefore no step was required to be taken unless he had a copy of the plaint itself which would go to fasten him with notice of the actual claim made against him.” 5. Having heard the learned counsel for the parties, I have perused the lower court records. The process server submitted report to the learned court on 09.08.2004. In the report, it is alleged that one employee of the defendant No. 2 received notice on behalf of the defendant No. 2 as well as defendant No. 1. The name of the employee has not been disclosed. The report is not supported by any affidavit and the report does not reveal as to whether there was any material before the process server to be of the opinion that the person accepting the notice was duly authorised by the defendant No. 1 to accept the notice. Under Chapter III Rule 66 of the Civil Court Rules and Orders under Gauhati High Court provides that if the service is made under Order V Rule 15, the report of the serving officer should clearly state with grounds of his belief that the person was absent from his residence at the time of attempted service and there was no likelihood of his returning within a reasonable time and that he had no agent empowered to accept the service and that the person to whom the process was delivered was an adult male member of his family and was actually residing with him at the time of such service. Rule 64 of the same Chapter further provides that when it appears to the court that sufficient information is not given as to the identity and place of residence of the person on whom or the house of the property where a process is to be served or if the court is satisfied from the declaration of the serving officer or upon his examination on oath that the person to be served or the house of property could not be identified after due diligence on an enquiry it may ask the party concerned to supply an identifier. A recital of Rule 64(2) would go to show that in a case a doubt arises about sufficiency of service, court is duty bound to examine the serving officer on oath to find out as to whether service has been duly made. Under Order V Rule 15 of the Code of Civil Procedure service of notice upon any adult member of the family of the defendant is sufficient. In Explanation to the said rule, a servant of the defendant has been excluded from the provision. Under such circumstances, if someone other than the family member is to be served with a notice in that event, it is necessary to be of the opinion that such person was an agent of the defendant or that he was authorised person. In that case, under Rule 16 of Order V, under serving officer delivers or tenders a copy of the summons to an agent or other person on his behalf, he shall require the signature of the person to whom the copies so delivered or tendered to an acknowledgment of service endorsed on original summons. Here in the present case, defendant No. 1 and defendant No. 2 are two different companies. Plaintiff showed the address of the defendant No. 1 to be the address of defendant No. 2 with a comment that defendant No. 1 is under care of the defendant No. 2. The person who received summons on behalf of defendant No. 1 is an employee of the defendant No. 2 and so there was nothing available to the serving officer to hold a view that the employee of defendant No. 2 was authorised by the defendant No. 1. 6. Besides, the plaintiff produced some documents at the time of presentation of the plaint and the documents are available on record. 6. Besides, the plaintiff produced some documents at the time of presentation of the plaint and the documents are available on record. An agreement dated 22.11.1991 is the basic document on which a jural relationship between the plaintiff and the defendant No. 1 has been sought to be established. That agreement contains the address of the defendant No. 1 as pointed out above, and obviously the address available on lease agreement dated 22.11.1991 is not the address of the defendant No. 1 shown in the plaint. There is yet another document which is the pleader’s notice issued by the learned counsel of the plaintiff to the defendant on 18.09.1998. In that notice it is the plaintiff who mentioned address of the defendant No. 1 as Jaiguru, Amingaon, Guwahati-781031. This address is also not shown in the plaint. If there are other addresses of the defendant No. 1 at which the plaintiff had earlier communicated with the defendant No. 1, in that event, no rational or reasonable cause appears to exist for not mentioning those addresses in the body of the plaint. As alleged by the petitioner herein, the plaintiff knowing the correct address described defendant No. 1 in a different address to be under care of defendant No. 2. Such assertion made by the petitioner in his application dated 16.11.2004 are supported by the documents filed by the plaintiff himself before the trial court at the time of presentation of the plaint. The learned trial court has not considered any of these materials before holding the view that notice was duly served on the defendant No. 1. The process server was not examined. The report was not duly proved and so the defendant No. 1 missed the opportunity of cross examining the process server on the point of service of notice on it. All these aspects of the matter taken together would lead to irresistible conclusion that the learned trial court has committed jurisdictional error in accepting service on defendant No. 1 and consequently rejecting the application for setting aside the order dated 30.09.2004 to proceed ex parte against defendant No. 1. Such an order dated 30.09.2004, therefore, is not sustainable in law. It is accordingly set aside. 7. Such an order dated 30.09.2004, therefore, is not sustainable in law. It is accordingly set aside. 7. The records further reveal that the defendant No. 1 filed written statement before the learned trial court on 12.01.2005 at the time the application for setting aside ex parte order was under consideration. The learned trial court shall accept the written statement and thereafter proceed in accordance with law to decide the suit on merit. The revision petition stands allowed. 8. No order as to costs. 9. Send down LCRs immediately.