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Himachal Pradesh High Court · body

2017 DIGILAW 185 (HP)

Vijaya Shakti Gupta v. Rakesh Khanna

2017-03-16

AJAY MOHAN GOEL

body2017
Ajay Mohan Goel, J. CMP(M) No. 139 of 2017 Application allowed. Delay condoned. CMP No. 1227 of 2017 By way of this application, applicant/respondent has prayed for setting aside ex parte judgment passed by this Court on 19.10.2016 on the ground that the judgment has been passed by this Court without issuance of any notice to the applicant/ respondent and without effecting any proper service upon him. 2. I have heard learned counsel for the parties and also gone through the records of this case to satisfy myself as to whether respondent was duly served in the case or not. 3. As per records of the case, the CMPMO was admitted on 22.09.2015, on which date, the respondent was proceeded against ex parte as service was complete but there was no representation on behalf of the respondent. 4. Records demonstrate that notices were issued to applicant/respondent on 31st October, 2014 and 12.11.2014 but as he could not be served for want of correct address, accordingly, on 09.12.2014 this Court ordered filing of fresh process fee and correct address. Thereafter, as per the records, notice issued to the respondent for his appearance in the Court on 25.03.2015 was received back with the report that the respondent was not available at the given address and on inquiry, it was informed that respondent had left the said address since long. The address on which said notices were issued is quoted here-in-below. “Rakesh Khanna S/o Sh. Romesh Kumar Kahanna, R/o NL-130, Mohalla Mohindru, Jalandhar City, Punjab” 5. Records also demonstrate that notices were issued to the respondent on 6th of April, 2015 for his appearance in the Court on 13th May, 2015 on the following address. “Rakesh Khanna S/o Sh. Romesh Kumar Kahanna, R/o Wispering Winds Resort (Khaniyara Road), Mohal Kasol, Mauja Khanyara, Tehsil Dharamshala, District Kangra, 176215” 6. As per records, this notice was also received back with the report that respondent was not found on the address given and he was stated to be out of station. Thereafter, again notices were issued to the respondent on 08.07.2015 for his appearance in the Court on 7th August, 2015 on both his addresses mentioned above. The respondent was again not served as he was not found on the given addresses. Thereafter, again notices were issued to the respondent on 08.07.2015 for his appearance in the Court on 7th August, 2015 on both his addresses mentioned above. The respondent was again not served as he was not found on the given addresses. Thereafter, an application i.e. CMP No. 6620 of 2015 was filed by the petitioner under Order 5 Rule 20 of the Code of Civil Procedure for substituted service of the respondent, on which following order was passed. “20.06.2015 Present: Ms. Ranjana Chauhan, vice counsel for the petitioner. CMP No. 6620 of 2015 has been moved under Order 5 Rule 20 read with section 151 CPC for the service of respondent Sh. Rakesh Khana by way of substituted mode. It is stated in the application that the said respondent is not being served through ordinary mode of service as he is intentionally keeping himself away and avoiding the service. The application is supported by an affidavit. It is clear from the perusal of the record that the aforesaid respondent is not being served for one reason or the other despite attempts having already been made thrice in this regard. Therefore, the application is allowed, as requested for. Respondent Sh. Rakesh Khana, be served through ordinary process as also through registered AD post. The said respondent be also served by way of publication in the daily newspaper “Amar Ujala” having wide circulation in the area where the respondent is residing/last resided/concerned area. Steps, i.e. publication charges, RAD covers, process fee etc., be taken within two weeks. Notices for the aforesaid purpose be made returnable on 07.08.2015. Additional Registrar” 7. Thereafter notices were published in vernacular Newspaper “Amar Ujala” Jalandhar Edition, (Punjab) dated 30th July, 2015 and vernacular Newspaper “Amar Ujala” Dharamshala Edition, (Himachal Pradesh) Edition dated 30th July, 2015, in which notices respondent was called upon to appear before the Court either in person or through an authorized agent, however, even after this publication, as none appeared on behalf of the respondent before the Court, in these circumstances that the applicant/ respondent was ordered to be proceeded against ex parte and judgment was announced in the case on 19.10.2016. 8. Mr. 8. Mr. R.K. Sharma, learned senior counsel appearing for the applicant/respondent has vehemently challenged the same on the ground that the service so effected upon the respondent by way of publication /substituted service is no service in the eyes of law as the applicant/respondent had not read the newspaper in issue, therefore, it is to be presumed that the publication of notice for his appearance in the Court was not in his knowledge. No other point is argued. 9. I am afraid that the said contention of learned senior counsel appearing for the applicant/respondent is without any merit. Records demonstrates that efforts were made for the service of respondent at his two known addresses but the notices could not be served upon the respondent as on the address which pertained to Jalandhar City, report was coming again and again that he was not residing on the said address. Whereas the address which pertained to Dharamshala, report was coming that respondent was not found for the purpose of service on the said address. Incidentally, the address given by the applicant/respondent in the present application which has been filed praying for setting aside the ex parte order is the same on which the Registry was not able to serve him which is both strange and surprising. 10. Be that as it may, the fact of the matter still remains that there has been effective service of the respondent by way of publication of notice in two vernacular newspapers dated 30th July, 2015 i.e. Amar Ujala, Jalandhar Edition, (Punjab) and Amar Ujala, Dharamshala Edition (Himachal Pradesh), in which notices were issued intimating the respondent to put in appearance before this Court on 07.08.2015 and despite publication of these notices, no representation or appearance was made on his behalf in the Court. As has already been mentioned by me above, the argument raised by learned senior counsel appearing for the respondent that publication of notices in newspaper is no service until and unless and it proved that the person who is to be served has read the newspaper and thereafter had chosen not to appear in the Court is without any merit. As has already been mentioned by me above, the argument raised by learned senior counsel appearing for the respondent that publication of notices in newspaper is no service until and unless and it proved that the person who is to be served has read the newspaper and thereafter had chosen not to appear in the Court is without any merit. It is not the mandate of law that when notices are published in newspaper then notice is deemed to have been served only when it is proved that newspaper in issue was actually read by the person to whom the notice was issued. Once this Court was satisfied that the petitioner despite best efforts was not able to serve the respondent and order of substituted service was made and notices were duly published in a vernacular newspaper, presumption is that the respondent was duly served. 11. Therefore, as the applicant/respondent has not been able to satisfy this Court that there was no proper service of notice upon him by way of publication, this application is dismissed being devoid of merit.