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2019 DIGILAW 1303 (HP)

Santosh Kumar v. Bharti Infratel Limited

2019-09-04

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with order dated 14.5.2019, passed by learned Civil Judge (Junior Division)-I, Dharamshala in CMA's Nos. 166/2019 and 167/2019, whereby two separate applications having been filed by the petitioner-defendant No.2 (hereinafter, 'defendant No. 2') under Order IX Rule 7 CPC and S.5 of Limitation Act, praying therein to set aside the ex-parte order dated 17.1.2008, after condoning delay in maintaining the application under Order IX Rule 7 CPC, came to be dismissed, defendant No.2 has approached this Court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein to set aside the aforesaid impugned order and to allow the applications filed under Order IX Rule 7 CPC and S.5 of Limitation Act. 2. Necessary facts as emerge from the record are that respondent Nos. 2 to 4/plaintiffs (hereinafter, 'plaintiffs') filed a suit for permanent injunction in the court of learned Civil Judge (Senior Division), Dharamshala, against petitioner-defendant No.2 and respondent No.1/defendant No.1 (hereinafter, 'defendant No.1') i.e. M/s Bharti Infratel Limited, however the fact remains that since defendant No.2 failed to put in appearance in the aforesaid suit despite having received notice, learned Court below, vide order dated 17.1.2008 proceeded against defendant No.2 ex-parte. Approximately, after eight years of passing of order dated 17.1.2008, defendant No.2 filed an application under Order IX Rule 7 CPC, praying therein to set aside ex-parte order dated 17.1.2008, alongwith an application under S.5 of Limitation Act, praying therein for condoning the delay in maintaining application under Order IX Rule 7 CPC. 3. Learned Court below, vide order dated 14.5.2019 (Annexure P-2) dismissed both the applications. In the aforesaid background, defendant No. 2 has approached this Court in the instant proceedings. 4. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned by learned Court below, while passing impugned order, this Court finds that vide order dated 14.1.2008, Dasti notices were issued to defendant No.2. In the aforesaid background, defendant No. 2 has approached this Court in the instant proceedings. 4. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned by learned Court below, while passing impugned order, this Court finds that vide order dated 14.1.2008, Dasti notices were issued to defendant No.2. Shri Uttam Chand, Process Server, who subsequently was examined as RW-1, though made an attempt to serve defendant No.2 by way of Dasti notice issued by learned Court below, but since defendant No.2 Santosh Kumar was not found present in his house and his wife Smt. Saroj Kumari, refused to accept the summons, Process Server, named herein above, affixed a copy of the summons on the door of the house of defendant No.2 in the presence of one witness namely Shri Chandu Ram. Learned Court below, having taken note of the report submitted by the Process Server, Uttam Chand, proceeded to record that defendant No.2 Santosh Kumar is deemed to have been served and accordingly, on 17.1.2008, proceeded against defendant No.2 ex-parte. 5. Since factum with regard to passing of impugned order dated 17.1.2008, allegedly came to the notice of defendant No.2 on 5.12.2015, when he was telephonically informed by an official of defendant No.1, applications in question came to be filed. 6. Apparently, both the applications came to be dismissed on the ground that impugned order dated 17.1.2008 was very much in the knowledge of defendant No.2, but he deliberately chose not to file an application for setting aside ex-parte order for almost eight years. Learned Court below, while passing impugned order, further arrived at a conclusion that no plausible explanation, if any, has been rendered on record by defendant No.2 qua delay in maintaining application under Order IX Rule 7 CPC. 7. At this stage, provisions of Order V Rule 9A CPC are reproduced herein below for: "9A. Summons given to the plaintiff for service (1) The Court may, in addition to the service of summons under rule 9, on the application of the plaintiff for the issue of a summons for the appearance of the defendant, permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service. (2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or tendering to the defendant personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court or by such mode of service as is referred to in sub-rule (3) of rule 9. (3) The provisions of rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer. (4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgment of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.]" 8. Having carefully perused provisions contained under Order V Rule 9(A) of the Code of Civil Procedure, this Court is in agreement with learned counsel for defendant No.2 that if Dasti summons issued by the court are refused to be accepted by a person, upon whom same are meant to be served, fresh summons are required to be issued by the court on the application made in that regard by the applicant. However, in the case at hand, it clearly emerges from the record that Process Server after recording refusal of Smt. Saroj Kumari, wife of defendant No.2, proceeded to affix the summons on the door of the house of defendant No. 2 in the presence of a person namely Chandu Ram, whereas, as per Order V Rule 9A(4) CPC, he ought to have given report that the elder member of the family of defendant No.2 has refused to receive the summons and in that eventuality, plaintiff ought to have filed an application under Order V Rule 20 CPC, for service by way of substituted mode. 9. In the case at hand, Process Server has followed procedure, which otherwise is/was required to be followed in the case of ordinary summons issued by court. Order V rule 17 CPC provides as under: "17. 9. In the case at hand, Process Server has followed procedure, which otherwise is/was required to be followed in the case of ordinary summons issued by court. Order V rule 17 CPC provides as under: "17. Procedure when defendant refuses to accept service, or cannot he found--Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, 22[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 in whose presence the copy was affixed." 10. It is evident from aforesaid provision that summons may be affixed on the door of the person, to whom notices are issued in the event of refusal to take summons by the agent or family member of that person. In the instant case, Uttam Chand, Process Server, while deposing as RW-1, has categorically deposed that he had received Dasti summons in Civil Suit No. 11/08 for service upon Santosh Kumar son of Jagat Ram. He has stated that he went to the spot but Santosh Kumar was not present and his wife, Saroj Kumari, refused to take summons. In the instant case, Uttam Chand, Process Server, while deposing as RW-1, has categorically deposed that he had received Dasti summons in Civil Suit No. 11/08 for service upon Santosh Kumar son of Jagat Ram. He has stated that he went to the spot but Santosh Kumar was not present and his wife, Saroj Kumari, refused to take summons. This witness further stated that he had affixed a copy of summons on the door of house of Santosh Kumar, in the presence of a witness namely Chandu Ram, but as has been taken note herein above, Process Server while serving Dasti summons, ought not have followed procedure as prescribed under Order V Rule 17 CPC, whereas, he ought to have simply given a report that the person sought to be served by way of Dasti summons was not present on the given address and elder member of the family refused to accept the service, whereafter, necessary application under Order V Rule 20 CPC, could have been filed by plaintiff for service of defendant No.2 by way of substituted mode. 11. Otherwise also, as per provisions of Order V Rule 17, affixation of summons is to be done by the Process Server in the presence of some independent witness, but in the case at hand, though Process Server stated that summons were affixed on the door of house of defendant No.2, in the presence of Chandu Ram, but he was unable to give complete address of Chandu Ram enabling defendant No.2 to produce him as a witness. 12. Rw-2 Prem Chand (plaintiff), in his evidence tendered by way of affidavit Ext. RW-2/A categorically deposed that on 14.1.2008, he had received Dasti summons for service upon defendant No.2. He also stated that after receipt of summons, he went to the house of defendant No.2 Santosh Kumar with the Process Server but he was not present in the house. Factum with regard to issuance of Dasti notice is otherwise not in dispute, rather same stands duly admitted in the statement of RW-2, Prem Chand, as such, procedure under Order V Rule 9A (4) CPC was required to be followed in the event of refusal to accept the Dasti notice by defendant No.2 himself or by his agent or family member. 13. 13. Factum with regard to passing of order dated 17.1.2008, allegedly came to the notice of defendant No.2 on 5.12.2015, when he was informed telephonically by an official of defendant No. 1. Learned Court below, while rejecting aforesaid explanation rendered by defendant No.2 has observed in the impugned order that defendant No.1 is a company and since defendant No. 2 has failed to disclose name of person, who had called and disclosed factum with regard to passing of order dated 17.1.2008, assertion with regard to defendant No.2 having acquired knowledge on 5.12.2015 with regard to passing of order dated 17.1.2008, cannot be believed. 14. Though, aforesaid observation of learned Court below is otherwise immaterial in view of non-compliance of provisions contained in Order V Rule 9A(4) CPC, otherwise also before going into the question of delay in moving application for setting aside ex-parte order, it would be relevant to take note of the fact that technically, defendant No.2 never came to be served and as such, it cannot be said that he had the knowledge of the proceedings initiated by the plaintiffs. The stand of defendant No.2, that he came to know about the suit filed by plaintiffs on 5.12.2015 from an official of defendant No.1, has not been refuted by the plaintiffs. Even if date of institution of application under Order IX, rule 7 CPC is seen, same is 8.12.2015, as such, defendant No.2 having come to know about passing of order dated 17.1.2008 and the suit pending against him, immediately filed the said application, as such, from the date of knowledge, it cannot be said that the application was barred by limitation. Otherwise also, defendant No.2 is interested in contesting the suit filed by plaintiffs and it is in the interests of justice and to avoid multiplicity of litigation that the suit be decided in the presence of defendant No. 2.Hence, findings returned by learned Court below that defendant No.2 was deemed to have been served, are not tenable, rather appear to have been made in violation of provisions of Order V Rule 9A CPC, as such, same are not sustainable. 15. Moreover, in the case at hand, the plaintiffs have chosen not to contest the petition despite having received summons and as such, it can safely be presumed that they have no objection to the present petition being allowed. 16. 15. Moreover, in the case at hand, the plaintiffs have chosen not to contest the petition despite having received summons and as such, it can safely be presumed that they have no objection to the present petition being allowed. 16. In view of above, the present petition is allowed. order dated 14.5.2019, passed by learned Civil Judge (Junior Division)-I, Dharamshala in CMA's Nos. 166/2019 and 167/2019 (Annexure P-2) is set aside. Applications filed by defendant No.2 under the provisions of Order IX, Rule 7 CPC and S.5 of Limitation Act are allowed. Defendant No.2 is permitted to join the lis and file written statement etc. Learned counsel for defendant No.2 undertake to cause presence of his client before learned Court below on 12.9.2019, when matter is already listed. All pending applications stand disposed of. Interim directions, if any, also stand vacated.