Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2106 (RAJ)

Pratap v. Hari Singh

2017-09-20

INDERJEET SINGH

body2017
JUDGMENT : Inderjeet Singh, J. The instant appeal has been filed by the appellant for setting aside the orders dated 25.03.2014 and 06.10.2009 passed by the trial court. 2. The brief facts of the case are that on 13.05.2009, the plaintiff-respondents filed a suit against the defendant-appellant for specific performance of an agreement to sell dated 06.07.2007 said to have been executed by the defendant for a consideration of Rs. 8,05,000/- per bigha regarding his agriculture land bearing khasra No. 100 measuring 2 bighas 14 biswas situated in village Sheelgaon Tehsil, Mundawar having his shares therein and received Rs. 1,00,000/- Lac as advance sale consideration and receipt in token thereof signed by him in presence of witnesses and attested by Notary Public. The summons of said suit were issued to the defendant. The learned trial Court in the absence of the appellant, on 16.07.2009 proceeded ex parte. The plaintiff examined himself and exhibited documents with three other witnesses. The learned trial court vide decree and judgment dated 06.10.2009 decreed the suit ex-parte against the appellant. 3. After coming to know the judgment and decree dated 06.10.2009 passed by the trial Court, the appellant moved an application on 20.08.2010 before trial Court under Order 9, Rule 13 CPC for setting aside ex-parte decree and judgment dated 06.10.2009 with the averments that he was never served with the summons of the suit, nor ever he refused to accept the same. He was never offered summons by the Process Server nor the notices along with copy of the plaint were affixed on the house in the presence of the witnesses and he never refused to accept the same in presence of witnesses. The report made by the process server was forged and collusive and, therefore the ex-parte proceedings taken against him were illegal. The appellant further stated in the application that on 17.08.2010, the plaintiff decree holder informed his son Rajoo that he had all done through the court process in the case against the appellant and then the appellant enquired about the matter through the counsel and came to the knowledge that the plaintiffs have filed a civil suit having forged signature on the agreement or receipt, which were not tallying with his real signature, inasmuch as the signature of appellant on agreement receipt were different. Lastly, in the application, the appellant prayed for setting aside the ex-parte decree passed by the trial Court. 4. Counsel for the appellant has argued that the learned trial Court while dismissing the application under Order 9, Rule 13, has not considered the grounds mentioned in the application properly and wrongly rejected the same. Counsel for the appellant further submits that in view of Rule 132 of General Rules (Civil) 1986, which provides the procedure for service of notice on defendants, the learned trial Court ignored that on the receipt of summons the process server has taken signature of only one independent person, whereas according to Rule 132 of General Rules (Civil) 1986, he should have taken signature of two independent persons, in case of refusal to take summon by the defendant. Counsel for the appellant further submits that according to Order 5, Rule 17, 18 & 19 in case of any doubt about the service of summons, the trial Court should have examined the process server by taking his affidavit on oath. Counsel for the appellant further submits that in the present matter valuable property of about 2 bighas and 14 biswas is involved and the appellant is illiterate and poor person, therefore, the trial court should have taken a liberal view in this matter and should have allowed his application under Order 9, Rule 13. 5. In support of his contentions the counsel for the appellant has relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Naresh Chandra Agarwal v. Bank of Baroda and others, reported in AIR 2001 Supreme Court 1253, wherein para 10 & 11 it was held as under :- "10. From the facts narrated herein above, it is clear that the appellant is one of the legal heirs of deceased 8th defendant and an application to bring him on record was made. Having made such application, it was the bounden duty of the plaintiff as also that of the court to see that all the legal heirs - the proposed legal representatives (including the appellant) were duly served. It is not in dispute that at the relevant point of time when the notice of application was Issued by the trial court, the appellant was serving in Gonda District and was not in Pilibhit to which address the notice of substitution was sent. It is not in dispute that at the relevant point of time when the notice of application was Issued by the trial court, the appellant was serving in Gonda District and was not in Pilibhit to which address the notice of substitution was sent. It is not even the case of the plaintiff that at the time of service of notice the appellant in fact was present in the address to which the notice was sent even on a visiting basis. Therefore, it is a reasonable to presume that the appellant was not served with the notice of substitution and the endorsement made therein as to the refusal of the service cannot be attributed to any act of the appellant. When a party is sought to be impleaded in a- legal proceedings service of notice on such party cannot be a mere formality but should, in fact, be a reality. In the instant case, neither the trial court nor the High Court gave any definite finding as to the service of notice on the appellant. The mere fact that when the appellant made an application for setting aside the ex parte decree, he happened to give his permanent residential addresses which incidentally happened to be the address to which notice of substitution was sent by the Court will not ipso facto lead to the conclusion that the notice of substitution was in fact served on the appellant. No inquiry or attempt was made by the trial court to find out the truth of the fact whether the notice of substitution was in fact served on the appellant. Even the plaintiff in its affidavit filed in opposition to the appellant's application did not deny the fact that the appellant was working Gonda Distt. at the relevant time. 11. The trial court proceeded to reject the appellant's application on twin reasoning : that, it was a case of 'irregularity in service of summons', and that, the other two brothers of the appellant having participated in the proceedings in the suit, there was no material prejudice to the appellant. This, in our opinion, was not a correct approach. Firstly, the present one is a case of non-service of notice on the appellant and not a case of mere irregularity in the service of summons. This, in our opinion, was not a correct approach. Firstly, the present one is a case of non-service of notice on the appellant and not a case of mere irregularity in the service of summons. Secondly, a plea was raised in the suit that the guarantee given by late Satish Chandra Agarwal stood discharged on account of another guarantee in supersession of or in lieu of the guarantee given by late Satish Chandra Agarwal having been accepted by the petitioner. On such pleadings, issue Nos. 9 and 12 were framed but were not decided. In the peculiar facts and circumstances of this case failure to determine the issue as to the guarantee furnished by late Satish Chandra Agarwal having been discharged and consequently the liability of late Satish Chandra Agarwal and his legal heirs hating come to an end did spell out prejudice to the interest of the appellant on account of opportunity to defend having not been afforded to him. Be that as it may, we are satisfied that since the appellant's share in the estate of his father is bound to be affected by the execution of the decree, the appellant ought to have been served with the notice of the application for substitution which having not been done, the application filed by him was entitled to be granted." 6. The counsel for the appellant further relied upon the judgment passed by Co-ordinate Bench of this Court in the matter of Jagdish Prasad Swami v. Ramji Lal Joshi, reported in 2007(2) WLC (Raj.) 133, wherein para 8 and 9, it was held as under:- "8. A bare perusal of the Order 9 of the Code clearly reveals that the trial Court has ample power for setting aside the ex-parte proceeding as well as for setting aside the ex-parte judgment and decree by imposing a cost upon the defendant. Instead of exercising this power, the trial Court are mechanically dismissing the application under Order 9, Rule 13 of the Code. This is cause for concerned. 9. In cases where the service of summons is doubtful, the trial Court is duty bound to take evidence on the point whether the summons were duly served upon the defendant or not. The process server should be examined for the said purpose. This is cause for concerned. 9. In cases where the service of summons is doubtful, the trial Court is duty bound to take evidence on the point whether the summons were duly served upon the defendant or not. The process server should be examined for the said purpose. In case the notice has been pasted at a conspicuous place of defendant's residence, then the two independent witnesses should also be examined by the court. It is only after examining the relevant persons that an application under Order 9, Rule 13 of the Code should be decided." 7. Lastly, the counsel for the appellant submits that in view of the Judgment passed by the Hon'ble Supreme Court (supra) as well as this Hon'ble Court, the appeal deserves to be allowed and ex-parte proceedings as well as ex-parte decree passed by the trial Court deserves to be quashed and set aside. 8. Counsel for the respondent has argued that the appellant was having the knowledge of ex-parte proceedings through out and he was negligent in not appearing before the trial Court, therefore, the trial court has rightly rejected his application. Counsel for the respondent submits that even the appellant was having the knowledge of execution proceedings in which notice were served upon him therefore, he has not entitled any sympathy. Counsel for the respondent further submits that in pursuance to the decree dated 06.10.2009. The sale deed for the land in-disputed has also been registered and his name has also been registered and his name has also been entered in the Revenue records. Lastly, counsel for the respondent submits that the appeal filed by the appellant deserves to be dismissed. 9. Heard counsel for the parties. 10. This court vide order dated 18.02.2015 has directed to the parties not to alienate the suit property without permission of this court. This court vide order dated 30.06.2014 'Call for the record'. I have perused the original record and also perused the original summon, which was issued by the trial Court during the suit proceedings in which there is an endorsement of process server which says that the defendant-appellant has refused to take the summons and only one witnesses Sher Singh has signed on report. I have perused the original record and also perused the original summon, which was issued by the trial Court during the suit proceedings in which there is an endorsement of process server which says that the defendant-appellant has refused to take the summons and only one witnesses Sher Singh has signed on report. On perusal of the report of process server clearly shows that there is no date and time has mentioned by the process server and only signature of one witnesses has been taken whereas signature of two independent witnesses should have been taken on report as provided under Rule 132 of the General Rules (Civil), 1986, which reads as under: 132. Code of service of processes The provision of the Code relating to the service of summons etc. should be carefully complied with. Attention is drawn in particular to Order 5, rules 16, 17 and 18 and Form No. 11. Appendix 'B' as also Order 3, Rule 5. The process-server should, as far as possible prepare his report on the spot, and attestation of the service should be obtained wherever possible from two respectable residents of the locality in a town or from Sarpanchs and panchs, Patwaris or neighbours in a village." 11. I have also perused the order passed by the trial Court dated 25.03.2014, in which the trial Court has wrongly relied upon the fact that the notice of execution proceedings were also served upon the appellant, therefore, the trial Court rejected his application for setting aside the ex-parte decree. In my considered view, in a case where the service of summons is doubtful, the trial court should have called the process server and should have take his affidavit regarding service of summons upon defendant. The valuable right of property of citizen is involved in this matter. Thus, the trial Court should have taken into consideration the requirement of law regarding service of summons as provided under General Rules (Civil) and CPC, in my considered view, the trial Court has failed to take into consideration the provisions of law.