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2019 DIGILAW 390 (JK)

Prinkle Mahajan v. Shoba Sharma

2019-08-21

RAJESH BINDAL

body2019
JUDGMENT : Rajesh Bindal, J.—The present appeal has been filed in this Court challenging order dated 26.09.2017 passed by the learned Court below whereby an application filed by the appellant seeking condonation of delay in filing application for setting aside of ex-parte decree was dismissed and as a consequence main application was also dismissed. 02. Learned counsel for the appellant submitted that a lease deed was executed between Shoba and M/s Lahori Nissan Private Limited (hereinafter referred to as ‘the lessee’) on 26.08.2013.Vide aforesaid lease deed, the lessee had taken on lease a building owned by Shoba. The appellant had signed the aforesaid lease deed on behalf of the lessee as an authorized signatory. For the purpose of execution of lease deed, lessee had authorized the appellant by way of resolution passed on 10.08.2013. Ever since the building was taken on lease, its rentals were being paid by the lessee and the account was being maintained in its books of accounts. 03. The respondent filed a suit of recovery of Rs. 5,19,777/- against the appellant pleading that the appellant had taken the property on lease and failed to pay the lease money. It came up for hearing before the Court below on 03.06.2017. On the very first date of hearing all modes were directed to be adopted for service of the appellant without first starting with the normal mode of service. On the next date of hearing, recording that the appellant/defendant is avoiding service, he was directed to be proceeded against ex-parte. Evidence was recorded and within four months of institution of the suit, the same was decreed. The moment appellant came to know about the ex-parte decree, he filed application for setting aside thereof along with an application seeking condonation of delay of 17 days in filing the same. Learned Court below vide impugned order dated 26.09.2017, while dismissing the application for condonation of delay also dismissed the main application. Though the Court had taken less than four months in decreeing the suit for recovery of huge sum of amount whereas on the other side for decision of the application for condonation of delay it had taken more than one year. 04. Learned counsel further submitted that in the service report it is sought to be claimed that service was effected through the brother of the appellant whereas he does not have any brother. 04. Learned counsel further submitted that in the service report it is sought to be claimed that service was effected through the brother of the appellant whereas he does not have any brother. The identifier was none else than the daughter of the respondent, who is an Advocate. It is not a case where service of the appellant was effected and despite that he failed to put in his appearance. The procedure as prescribed under Code of Civil Procedure was not followed. It was further submitted that learned Court below has failed to appreciate the fact that where the defendant in the suit is proceeded ex-parte, duty is more onerous on the Court to see as to whether the plaintiff is able to make out a case against the defendant or not. The Court below in the present case failed to discharge that duty. There was no lease deed executed by the appellant who had been impleaded as defendant. The lessee was M/s Lahori Nissan Private Limited, who had not been impleaded as defendant in the suit filed. The appellant was merely an authorized signatory of the Company. The company and the authorized signatory are separate legal entities. The appellant does not have any connection with the Company as he is not even its Director. The prayer is that the manner in which the suit has been decreed without following due process of law and ensuring that service of appellant is complete, the impugned order passed by learned Court below deserves to be set aside and the application filed for setting aside the ex-parte decree be allowed so as to enable the appellant to contest the suit. In support reliance has been placed on judgment of Hon’ble the Supreme Court in Sushil Kumar Sabharwal vs. Gurpreet Singh and ors., reported as AIR 2002 SC 2370 and judgment of this Court in Jalal-Ud-Din Mir and Ors. Vs. Ghulam Mohammad Mir and Ors., reported as 2006(3) JKJ 585. 05. On the other hand learned counsel for the respondent submitted that the suit was filed on account of failure of the appellant to pay the lease money. It was simplicitora money suit. The appellant was in knowledge of the proceedings and he filed the application only when for execution of decree, the attachment order was issued. 05. On the other hand learned counsel for the respondent submitted that the suit was filed on account of failure of the appellant to pay the lease money. It was simplicitora money suit. The appellant was in knowledge of the proceedings and he filed the application only when for execution of decree, the attachment order was issued. As the daughter of the respondent is a practicing lawyer, she accompanied the Process Server to identify the respondent for his service. There is nothing wrong in the process adopted. No case is made out for condonation of delay for filing the application for setting aside the ex-parte decree. The impugned order only decides the application seeking condonation of delay and the main application has been dismissed only as a consequence thereof. The appellant is playing hide and seek. He cannot be permitted to delay the process of execution the decree once he had knowledge of pendency of the suit but still failed to defend the same. 06. Heard learned counsels for the parties and perused the relevant referred record. 07. A perusal of the record of the court below shows that the suit was listed for the first time on 05.07.2016 and notice was directed to be issued for 15.07.2016 i.e., only for 10 days in a suit for recovery. On the summons the report by the process server is that at the time of service, brother of the petitioner-defendant was available who was handed over the summon and copy of the plaint. The process server was accompanied by Rimpy Sharma, Advocate who had also signed the report of the process server. The name of the brother of the petitioner has not been mentioned by the process server on whom the service has been affected. 08. On the next date i.e. 15.07.2016, the Presiding officer was not available due to some official engagement, hence, the matter could not be taken up. However, it has been recorded that the summon and receipt of the post office has been kept on file. A perusal of the record of the court below shows that a postal receipt dated 11.07.2016 is also on record. Even though there was no direction for issuance of summon through registered post, as well. The case was adjourned to 28.07.2016. On that date fresh notice was issued to the defendant for 10.08.2016. 09. A perusal of the record of the court below shows that a postal receipt dated 11.07.2016 is also on record. Even though there was no direction for issuance of summon through registered post, as well. The case was adjourned to 28.07.2016. On that date fresh notice was issued to the defendant for 10.08.2016. 09. Service of summon for 10.08.2016 and the report of the process server is that the person present at the house of the petitioner-defendant refused to acknowledge the summon and the copy of the plaint. From his conduct, it was evident that the petitioner is avoiding service. There is no witness cited in whose presence this all happened. On 10.08.2016, learned court below recorded that the summon has been received back with the report of refusal of the summon. The matter was kept pending for 17.08.2016 to await service, i.e., summon sent through registered AD. Important to note that there was no order passed earlier to send summon through Registered AD. On 17.08.2016, the petitioner-defendant was directed to be proceeded against ex-parte evidence. 10. A perusal of the lease deed, on the basis of which the suit for recovery was filed shows that it was executed on 26.08.2013 between Shoba and M/s Lahori Nissan Private Limited. The appellant had signed the same on behalf of the aforesaid Company as authorized signatory. In the suit filed, the company was not impleaded as defendant. The suit was filed impleading only the appellant as the defendant. 11. Even in case where any defendant is proceeded against ex-parte more onerous duty is on the Court to ensure that the claim made by the plaintiff is made out against defendant(s) impleaded in the suit. Merely on account of absence of defendant(s), it cannot be presumed that case pleaded is to be accepted. Plaintiff has to stand on his own legs. But the learned Court below has failed to discharge its duties as the documents placed on record by the plaintiff, had not been properly appreciated. 12. The learned Court below has wrongly recorded in the impugned order that the appellant had admitted that he had taken the property on lease from the plaintiff whereas the specific averment made by the appellant in the application filed before the learned Court below, as is evident from the record, was that he had signed on behalf of the Company. The learned Court below has wrongly recorded in the impugned order that the appellant had admitted that he had taken the property on lease from the plaintiff whereas the specific averment made by the appellant in the application filed before the learned Court below, as is evident from the record, was that he had signed on behalf of the Company. In fact learned Court has not been able to make out any difference between the Company and the authorized signatory to find out as to who is liable to pay the lease money and who had in fact been paying the same up to the date it was received by the plaintiff. 13. It has further been recorded in the impugned order that summons sent for service of appellant were received back with report of the process server that the brother of the defendant was available at the given address and he was served with the summons and also handed over copy of the plaint along with documents. He was identified by Rimpy Sharma, an Advocate. The definite stand that has been taken by the appellant is that he does not have any brother. Rimpy Sharma, Advocate, is daughter of the plaintiff, a fact not denied by the respondent. 14. The suit was filed on 05.07.2016. The manner in which service of the appellant was sought to be effected does not inspire confidence regarding due process followed by the Court. Merely on presumptions, the appellant/defendant has been directed to be proceeded against ex-parte. Though in the order passed on 28.07.2016, it is mentioned that there is refusal by the defendant to receive the summon. However, in the impugned order passed there is no such mention. It records that the summons had been sent at the correct address and were received by a person available at that time. 15. Code of Civil Procedure provides for complete procedure in Order V for service of summons. Rule 12 thereof provides that wherever practicable service of summon has to be made on defendant in person unless he has an agent empowered to accept the service. Service can also be effected on an adult member of the family residing with him in case there is no likelihood of defendant being found at the place of address within reasonable time, as provided for in Rule 15. Service can also be effected on an adult member of the family residing with him in case there is no likelihood of defendant being found at the place of address within reasonable time, as provided for in Rule 15. Order V Rule 17 details the procedure to be adopted when the defendant refuses service or cannot be found. In that eventuality the serving officer shall affix a copy of the summon on the outer door or some other conspicuous part of the house in which defendant ordinarily resides or carries on business. The report of the process server should suggest that under what circumstances affixation was made and name and address of the person who identified the house and was present when the summon was affixed. Where the summon has been returned and is not verified by affidavit of Returning Officer, Court is to examine him on oath before passing appropriate order. Order V Rule 20 of CPC provides for substituted service where the Court is satisfied, for the reasons to be recorded, that the defendant is keeping away for the purpose of avoiding service or that the summons cannot be served in ordinary way. 16. For the reasons mentioned above, present petition is allowed, order dated 26.09.2017, passed by the learned court below is set aside. Application filed by the appellant-defendant seeking condonation of delay of 17 days in filing the application for setting aside the ex-parte decree is allowed and the application filed by the appellant-defendant for setting aside the ex-parte decree is also allowed. The case shall now proceed from the stage of filing of written statement by the appellant-defendant. Both the parties are directed to appear before the Principal District Judge, Udhampur on 13.09.2019, for further proceedings.