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Madhya Pradesh High Court · body

2017 DIGILAW 886 (MP)

Mohan v. Kamal s/o Umraoprasad Sharma

2017-08-03

VIVEK RUSIA

body2017
ORDER : Heard on the question of admission. The applicant (hereinafter referred to as “the defendant”) has filed the present revision under section 115 of Civil Procedure Code challenging the order dated 3-5-2016 passed in Civil Misc. Appeal No. 4/2016 by First Additional District Judge, Barwani and order dated 12-1-2016 passed by Civil Judge, Class-I, Rajpur in MJC No. 2/2014 by which the Court has refused to set aside the ex parte judgment and decree dated 29-9-2010. 2. Facts of the case are as under:— (a) The Respondent/plaintiff filed the Civil Suit No. 10-A/2010 seeking possession of the house. The suit was filed 19-7-2010 in which the summon was issued to the present applicant/defendant on 29-7-2010. The service of the notice was served to the wife of the defendant who refused to receive the same. The Process Server-Ashok Verma submitted his report to the Court (Ex.P/7) dated 29-7-2010 and on the basis of the said report, the present applicant has been proceeded ex parte. Thereafter the ex parte judgment and decree dated 29-9-2010 was passed against him. (b) After the judgment and decree, the plaintiff filed the execution proceedings. When the present applicant/defendant received the notice of execution case, then he came to know about the judgment and decree dated 29-9-2010. The present applicant filed an application under Order IX, Rule 13 of Civil Procedure Code on 31-10-2011. Since the limitation to file the application has expired, therefore, he filed an application for condonation of delay. By order dated 17-11-2012 the learned trial Court has allowed the application under section 5 of the Limitation Act and condoned the delay. (c) In support of the application for setting aside ex parte decree, the present applicant examined himself as PW-1; his wife Smt. Laxmi as PW-2. The Non-applicant/plaintiff examined Process Server Ashok Verma as NAW-1 and Kamal Sharma as NAW-2. All the witnesses were cross-examined. Vide order dated 12-1-2016 the learned trial Court has rejected the application under Order IX, Rule 13 of Civil Procedure Code on the ground that the summon of the Court was duly served to the defendant's wife and despite that the he did not appear before the Court, therefore, the ex parte judgment and decree cannot be set aside. (d) Being aggrieved by the order dated 12-1-2016, the applicant preferred Misc. Appeal under Order XLIII, Rule 1 of Civil Procedure Code. (d) Being aggrieved by the order dated 12-1-2016, the applicant preferred Misc. Appeal under Order XLIII, Rule 1 of Civil Procedure Code. Vide order dated 3-5-2016 the learned ADJ has dismissed the appeal and affirmed the order of the trial Court. The learned appellate Court has rejected the application on the ground that under the provisions of Order V, Rule 15 of Civil Procedure Code summon was duly served to the defendant's wife. Being aggrieved by the order dated 3-5-2016, the defendant has filed the present revision before this Court. 3. Shri J.B. Mehta, learned counsel appearing on behalf of the applicant/defendant submits that the summon dated 29-7-2010 was never served, neither to the defendant nor his wife. The address given in the plaint is incomplete. The Process Server has submitted false report. The witnesses of the Panchnama has not been examined. The learned Court has wrongly adopted the procedure under Order V, Rules 15, 17 and 19 of Civil Procedure Code. In support of his contention, he has placed reliance over the judgment of the Apex Court in the case of Sushil Kumar Sabharwal v. Gurpreet Singh, (2002) 5 SCC 377 . 4. Shri B.K. Gupta, learned counsel appearing on behalf of the Respondent/plaintiff submits that the summons of the Court was duly served to the defendant's wife and despite that he did not appear, therefore, the Court has rightly proceeded under Order V, Rule 15 of Civil Procedure Code. Both the Courts have concurrently held that the summon was duly served, therefore, no interference is called for in the revision under section 115 of Civil Procedure Code. The scope of revision is very limited. 5. I have heard learned counsel for the parties and perused the record. 6. The Respondent/plaintiff filed the suit for possession of house and the mesne profit. By order dated 19-7-2010 the Court has issued a summon to the defendant on payment of process fee. In the plaint, the address of the defendant was given as “Mohan s/o Bhagwan Yadav (Ahir), R/o Rajpur, District Barwani”. The summon dated 2-8-2010 was exhibited as Ex.P/3. The said summon was tried to serve by Process Server Ashok Verma who has prepared Moka Panchnama as Ex.P/4 in which he has stated that on 29-7-2010 the defendant was not available in the house and his wife read the notice and refused to accept. The summon dated 2-8-2010 was exhibited as Ex.P/3. The said summon was tried to serve by Process Server Ashok Verma who has prepared Moka Panchnama as Ex.P/4 in which he has stated that on 29-7-2010 the defendant was not available in the house and his wife read the notice and refused to accept. The said Panchanama was signed by only one witness Rakesh whose details are also not mentioned. The Process Server has submitted its report that the wife of the defendant has refused to accept the notice and “notice is unserved”. 7. The plaintiff examined Process Server Ashok Verma as PW-1 who has admitted that he went to the house of the defendant and tried to serve the summon of the Court to defendant's wife which she refused to receive the summon. He was put a question whether he knows the wife of the defendant on which he said that he does not know her. He further deposed that he was asked her to disclose name but she has not disclosed her name. He has also stated that he cannot explain the boundaries of the house of the defendant. 8. The plaintiff did not examine the witness of Panchanama-Rakesh whose details are also not mentioned. Therefore, the report of Process Server is doubtful. When the proper address of the defendant is not available in the plaint as well as in the summon, then how he could reach the house of the defendant. The defendant has filed the acknowledgment (Ex.P/4) by which the notice of execution case was served to him. In this acknowledgment the name of the Mohalla is also mentioned i.e. and this notice was properly served to the defendant. Therefore, the proper address in the plaint was not mentioned by the plaintiff to avoid service of summon. 9. Even otherwise under Order V, Rule 17, Civil Procedure Code provides procedure to be followed where the defendant refuses to accept the notice or cannot be found. Order V, Rule 17 of Civil Procedure Code is reproduced below:— “17. Procedure when defendant refuses to accept service, or cannot be found. 9. Even otherwise under Order V, Rule 17, Civil Procedure Code provides procedure to be followed where the defendant refuses to accept the notice or cannot be found. Order V, Rule 17 of Civil Procedure Code is reproduced below:— “17. Procedure when defendant refuses to accept service, or cannot be found. — Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service 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 and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the 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 shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto 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 ‘whose presence the copy was affixed.” 10. As per Order V, Rule 17 of Civil Procedure Code, where the defendant or his agent or such other person refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides. The provision is mandatory in nature. Admittedly the said procedure has not been adopted by the Process Server/Serving Officer. Therefore, the trial Court has wrongly proceeded ex parte against the defendant. 11. There is amendment by the State under Order V, Rule 17 of Civil Procedure Code to the effect that where a special service has been issued and the defendant refuses to sign the acknowledgment it shall not be necessary to affix a copy as directed hereinafter. Therefore, the trial Court has wrongly proceeded ex parte against the defendant. 11. There is amendment by the State under Order V, Rule 17 of Civil Procedure Code to the effect that where a special service has been issued and the defendant refuses to sign the acknowledgment it shall not be necessary to affix a copy as directed hereinafter. But in the present case special service has not been issued for service of summon to the defendant, therefore, the said proviso would not apply. 12. Under Order V, Rule 17 of Civil Procedure Code when the defendant refuse to accept the service, then the Process Server is required to file an affidavit in a prescribed proforma in support of his report about the refusal of the summon. Both the Courts did not consider this provision of law. The Process Server admittedly has not filed any affidavit in support of his report. On the contrary he submitted the report that the notice is returned without service. This Court in the case of Smt. Alka Mangal v. Mahendra Were Housing Corporation, Misc. Appeal No. 1014 of 2012 decided on 12-5-2016 [2016 MPLJ Online 33] has held as under:— “12. From the aforesaid, it clearly emerges that the process server on alleged refusal of the appellant/defendant No. 3 to accept the process, was required to affix the same as per Rule 17 of Order 5 of the Civil Procedure Code. This lapse on his part cannot be treated as mere an irregularity because in Sushil Kumar Sabharwal v. Gurpreet Singh (supra); Rooprani v. Prem Singh (supra); Baijnath Mishrilal Kachhi v. Harishanker (supra), it has clearly been held that it is mandatory for the process server to affix a copy of the summons, if there is a refusal to accept the same. In Sushil Kumar's case, it has further been held that failure to effect service by affixure is not a mere irregularity in service of summons, rather it is a case of non-service of summons. 13. In view of the aforesaid dictum of law, which is quite eloquent and has been followed by this Court, there remains no iota of doubt that non-affixture of process resulted in illegality in service and hence, the order passed by the trial Court to proceed ex parte was apparently illegal and consequently, the ex parte judgment and decree was liable to be set aside. 14. 14. Here, it is also pertinent to state that the sworn statement of the process server on the back of the disputed process is not in the prescribed format, which finds place at serial No. 11 in appendix-B of Civil Procedure Code. The Court below as well as the trial Court did not advert to this important aspect of the matter, rather the Court below proceeded to examine the merits of the case which as laid down in Dayaram v. Puniya, 2012 (4) M.P.LJ. 548 was impermissible.” 13. The provisions of law specifically, Rule XIX of Order 5 further provides that in case such summon is returned under Rule 17, the Court must obtain an affidavit of the serving officer and may if necessary also examine him and in case no such affidavit is filed, must examine the serving officer on oath and make such further enquiry as it deems fit regarding service of summon on the defendant and thereafter must declare, either that the summon has been duly served or pass such further orders regarding service as it thinks fit. 14. That earlier also this Court in the case of Suresh Kumar v. Godavaribai, 1991 M.P.LJ. 843 has already considered the scope of Order V, Rules 15, 17 and 19:— “6. Rule 19 of Order 5, Civil Procedure Code Provides that if the summons is returned under Rule 17, the Court shall if the report is not verified by the affidavit of the serving officer, examine the serving officer and 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. Now in the instant case, it is clear that the process-server has not stated in the report that although the defendant was absent from his residence at the time of the service, but there was no likelihood of his being found at the residence within a reasonable time. In the absence of this report of the process-server, the service could not be made on an adult member of the family. As such, one of the ingredients for serving the summons on the father of the present applicant being absent, it cannot be said that the provisions of Rule 15 of Order 5, Civil Procedure Code were complied with. In the absence of this report of the process-server, the service could not be made on an adult member of the family. As such, one of the ingredients for serving the summons on the father of the present applicant being absent, it cannot be said that the provisions of Rule 15 of Order 5, Civil Procedure Code were complied with. Similarly when the father of the defendant refused to accept the service, then the procedure as provided under Rule 17 of Order 5, Civil Procedure Code had to be adopted. But it appears that neither the provisions of Rule 15 of Order 5 have been complied with in the instant case, nor that under Rule 17 of Order 5 have been pressed into service by the bailiff and consequently the Court has also not followed the procedure provided under Rule 19 of Order 5, Civil Procedure Code. Shri Agrawal learned counsel for the applicant has cited various authorities in support of his argument but in view of the clear provisions of law as stated above, I need not burden this order with the discussion of the aforesaid authorities.” 15. In the case of Sitaram v. Kalawati, 1986 M.P.L.J. 67, in paragraph 22 it has been held as under:— “22. In relation to service under Order 5, Rule 17 Civil Procedure Code we have the further provision embodied in Order 5, Rule 19 Civil Procedure Code, it reads thus : Where a summon 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. That where service officer has not verified his report by affidavit it is mandatory on the Court to examine the serving officer or to get him examined by another Court before proceeding ex party against the defendant. The Court is also empowered to make such further enquiry in the matter as it thinks fit. The Court is required to declare that summons has been duly served to the defendant. The Court is also empowered to make such further enquiry in the matter as it thinks fit. The Court is required to declare that summons has been duly served to the defendant. The meaning of the expression ‘duly served’ is to give information to the defendant about the proceedings against him. Before holding that there has been due service the Court must be satisfied that the provisions of Order 5, Rule 17, Civil Procedure Code were really complied with.” 16. Similar view has been followed by this Court in the case of Charanpal Patel v. Smt. Kavita Jain, reported in AIR 1998 M.P. 16 . 17. In view of the above, both the Courts below did not examine that the procedure of Order V, Rule 17 of Civil Procedure Code which is mandatory in nature has not been followed before proceeding ex parte against the defendant. Admittedly the notice was not affixed in the house of the defendant when her wife has refused to accept the notice. Therefore, the defendant has wrongly been proceeded ex parte. Therefore, further proceedings also vitiates. Hence, the judgment and decree dated 29-9-2010 is hereby set-aside. The proceedings of civil suit are restored to its original number and shall be proceeded as per law. The parties are directed to remain present before the trial Court on 1-9-2017. The office is directed to return the record of the case. 18. The revision is allowed.