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2023 DIGILAW 1670 (ALL)

Geeta Pandey v. Raghvendra Datt Ram Pandey

2023-07-12

MANISH MATHUR

body2023
JUDGMENT Manish Mathur, J. Heard Mr. Mayankar Singh, learned counsel for revisionist and Mr. Prashant Singh Gaur, on behalf of opposite party No.1. 2. Learned counsel for the parties admit that opposite party no.2 is merely proforma in nature and, therefore, notices are dispensed with. 3. Revision under section 115 of the Code of Civil Procedure, 1908(hereinafter referred to as the Code) has been filed challenging orders dated 07.01.2021 and 20.01.2023 passed in Regular Suit No.760 of 2019 instituted for declaration. Vide order dated 07.01.2021, exparte proceedings were directed against the revisionist/defendant and vide order dated 20.01.2023, application preferred by revisionist under Order 9, Rule 7 of the Code has been rejected. 4. Learned counsel for revisionist submits that although notices were issued in the aforesaid proceedings but the revisionist as defendant was never served with notice resulting in her non-appearance and passing of order dated 07.01.2021 directing ex parte proceedings against her. It is submitted that upon gaining knowledge of aforesaid order, an Application under Order 9, Rule 7 of the Code was preferred which has also been rejected by means of order dated 20.01.2023 primarily on the ground that since notices were issued to defendant at her correct address, it would be deemed that said notices had been served upon the defendant. It is submitted that once the defendant in her Application under Order 9, Rule 7 of the Code made a specific averment that she was never served any notices with regard to suit proceedings, the presumption under law stood rebutted and in fact the burden was upon the plaintiff to have proved service of notice. It is submitted that the deeming clause would be applicable only in case it is not rebutted. It has also been submitted that due to passing of impugned orders, a valuable right of participation to defendant has been lost. It is submitted that the deeming clause would be applicable only in case it is not rebutted. It has also been submitted that due to passing of impugned orders, a valuable right of participation to defendant has been lost. Learned counsel has placed reliance on the following decisions to buttress his submissions:- (a) Puwada Venkateswara Rao v. Chidamana Venkata Ramana reported in (1976) 2 SCC 409 [Hon'ble the Supreme Court]; (b) Sushil Kumar Sabharwal v. Gurpreet Singh and others, reported in (2002) 5 SCC 377 : AIR 2002 SC 2370 [Hon'ble the Supreme Court]; (c) M/s Sultan Leather Finishers (Pvt.) Ltd. and others v. Additional District Judge, Court No.4, Unnao and others, reported in 2005 (23) LCD 476 [Decision of this Court]; (d) Amarnath (since deceased) and others v. Ram Murti Devi and others, reported in 2013 (31) LCD 909 [Decision of this Court]; (e) Smt. Satya Bhama Mishra and others v. Smt. Kamlapati Devi and others, reported in 2013 (31) LCD 2093 (6) [Decision of this Court]; and (f) M/s New Manufacturing Com. and others v. State Bank of India Badaun, reported in 2012 (30) LCD 2614 (6) [Decision of this Court]. 5. Learned counsel appearing on behalf of answering opposite party has refuted submissions advanced by learned counsel for revisionist with submission that in terms of Proviso to Order 5, Rule 9 (5) of the Code, there is an inherent presumption with regard to service of notice upon defendant where the summons are properly addressed, pre-paid and duly sent by registered post acknowledgement due as was in the present case. It is submitted that the impugned orders have been passed on the basis of material on record which clearly does not rebut the said presumption. It is also submitted that even in Application under Order 9, Rule 7 of the Code, no cogent explanation has been furnished by the revisionist/defendant for recalling order dated 07.01.2021. It is submitted that the impugned orders have been passed on the basis of material on record which clearly does not rebut the said presumption. It is also submitted that even in Application under Order 9, Rule 7 of the Code, no cogent explanation has been furnished by the revisionist/defendant for recalling order dated 07.01.2021. It has been further submitted that a finding of fact recorded by the trial court cannot be interfered with in proceedings under Section 115 of the Code until and unless order is not within four corners of the provisions thereof and as such it is submitted that since no material irregularity has been indicated in the orders impugned nor has it been indicated that the trial court has failed to exercise a jurisdiction vested in it or has acted in excess of its jurisdiction, the present revision should fail on that score. It has also been submitted that as per provision of Order 9, Rule 7 of the Code, a good cause is required to be shown by defendant for grant of such indulgence. Learned counsel has placed reliance on the following decisions:- (a) Basant Singh and another v. Roan Catholic Mission, reported in (2002) 7 SCC 531 [Hon'ble the Supreme Court]; (b) Keshardeo Chamria v. Radha Kissen Chamria and others, reported in (1952) 2 SCC 329 [Hon'ble the Supreme Court]; (c) Pandurang Dhondi Chougule and others v. Maruti Hari Jadhav and others, reported in (1966) 1 SCR 102 [Hon'ble the Supreme Court]; (d) Johri Singh v. Sukh Pal Singh and others, reported in (1989) 4 SCC 403 [Hon'ble the Supreme Court]; (e) Madanlal v. Shyamlal, reported in (2002) 1 SCC 535 [Hon'ble the Supreme Court]; and (f) Dal Bahadur Lama v. Ratna Kumari Basnet and another reported in 1979 SCC Online Sikk 3 [Sikkim High Court] 6. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is evident that due to non-appearance of defendant in suit proceedings, order dated 07.01.2021 was passed proceeding ex parte against the defendant and by means of other impugned order dated 20.01.2023, Application under Order 9, Rule 7 of the Code was rejected inferring service being deemed upon defendant. 7. 7. While order dated 07.01.2021 indicates absence of defendant in the suit proceedings and the fact that time granted for filing of written statement has already lapsed, proceeding for ex parte against defendant has been directed particularly since there are directions issued by this Court for expeditious disposal of the suit. 8. In order dated 20.01.2023, it has been noticed that after issuance of notice, there is no postal endorsement on record indicating whether notice could be served upon the defendant or not and therefore vide order dated 25.02.2020, notice upon defendant was deemed fixing 26.03.2020 for filing of written statement and framing of issues. The order also indicates directions passed by this Court on 16.09.2020 for expeditious disposal of suit proceedings but the trial court thereafter has indicated that in case defendant was rebutting the presumption of service upon her, she should have led evidence since burden was upon her to discharge the same. Order also takes into account fact that no good cause was even otherwise shown in the application for grant of such indulgence. 9. From the record, it appears that presumption of service was indicated by the trial court vide order dated 25.02.2020 which in turn indicates presumption of service on the basis that Registry receipt was on record indicating notices having been issued at the correct address and upon the correct person. Presumption has therefore been drawn with regard to service upon defendant in terms of Proviso to Order 5, Rule 9 (5) of the Code. In none of the orders on record is it discernible that notices issued to defendant were in fact served personally upon her and such presumption has been drawn only on the basis of deeming clause of Order 5, Rule 9 of the Code as indicated herein above. 10. The aspect of presumption of notice upon a defendant apart from the provisions of Order 5, Rule 9 of the Code is also evident from the provisions of section 27 of the General Clauses Act which are also in the same nature with regard to presumption of service of notice once the notice is sent by registered post with acknowledgement due indicating the correct name and address of the person concerned. Therefore, on a conjoint reading of Order 5, Rule 9 of the Code as well as section 27 of the General Clauses Act, presumption of notice upon the party to whom it is sent by the mode indicated is deemed. However, the saving grace is only where the defendant puts in appearance and rebuts the aforesaid deeming clause. It is already settled law that the aforesaid deeming provision regarding such presumption is rebuttable at the instance of defendant. 11. The aspect upon whom burden would lie to prove service of notice has been dealt with by Hon'ble the Supreme Court in Sushil Kumar Sabharwal v. Gurpreet Singh and others, reported in (2002) 5 SCC 377 : AIR 2002 SC 2370 in which it has been held that in a case of an oath v. oath, the oath of defendant would be more weighty than the oath of process server and therefore in the ordinary course of events, the court of fact should have discarded the statement of process server and believed the statement of defendant. It has also been held that the provisions of Order 9, Rule 6 of the Code casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being 'proved' that the summons were duly served when and when alone, the Court is conferred with a discretion to make an order for hearing ex parte, since any default or casual approach on the part of the Court may result in depriving a person of his valuable right to participate in the hearing. 12. The rebuttability of the presumption of service has also been adverted to by a Three-Judge Bench of Hon'ble the Supreme Court in Puwada Venkateswara Rao(supra) reported in (1976) 2 SCC 409 in which it has been held that presumption of service once repelled by defendant's statement on oath meant that the plaintiff could not succeed without further evidence although it may not always be necessary to produce the postman who tried to effect service. Relevant portions of the judgment are as follows:- "8. A question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent-landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced. Relevant portions of the judgment are as follows:- "8. A question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent-landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced. The Andhra Pradesh High Court had relied upon Meghji Kanji Patel v. Kundanmal Chamanlal [AIR 1968 Bombay 387 : 70 Bom LR 253] to hold that the notice was not served. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused". The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An ex parte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect." "9. In Nirmalabala Devi v. Provat Kumar Basu [(1947) 52 CWN 659] it was held, by the Calcutta High Court, that a letter sent by registered post, with the endorsement "refused" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the letter had come back with the endorsement "refused" could not raise a presumption of failure to serve. On the other hand, the presumption under Section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by him. This is also a correct statement of the law." "10. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us." 13. The aforesaid judgment would therefore, in the considered opinion of this Court, be a proposition for the law that deeming clause pertained to presumption of service is rebuttable and that too on filing evidence by means of oath. The proposition which may be culled out from the aforesaid judgment is clearly reflective that the proposition pertaining to presumption of service is rebuttable by defendant merely by filing evidence on oath, which may include a statement made on oath such as an Application under Order 9, Rule 7 of the Code. Other presumption which can be drawn from the aforesaid judgment is that once rebuttal is permitted on oath, the burden to prove service would shift upon the plaintiff since it has been held that once evidence has been rebutted by defendant on oath, it would mean that plaintiff could not succeed without further evidence as has been indicated in paragraph 10 of the said judgment. Consequently, it can be held that rebuttal by defendant would not mean leading of evidence apart from filing of a statement on oath and that the burden would in fact shift upon the plaintiff once such a rebuttal is made by defendant by affidavit. 14. It is also relevant to indicate that in terms of Order 19, Rule 1 of the Code, any Court at any time and for sufficient reason can order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable. 15. 15. Clearly, provisions of Order 19, Rule 1 of the Code are enabling provisions which casts a power upon Court concerned that any point can be proved by means of an affidavit without leading actual evidence in support of the same. In terms of aforesaid provision as well, the court is very well empowered to treat an affidavit filed by defendant to rebut presumptions of service, as evidence. Although learned counsel for answering opposite party has submitted that such an affidavit cannot be treated to be evidence until and unless the court for sufficient reason orders it to be treated as such but, in considered opinion of this Court, the said power conferred upon the Court is an enabling provision under which the Court itself can exercise such power and treat an affidavit to be evidence. 16. In the present case, presumption of service upon defendant was clearly rebutted in the application filed under Order 9, Rule 7 which was verified as an affidavit in terms of the provisions of the Code itself and in view of aforesaid judgments, would clearly amount to a rebuttal of presumption of service, whereafter the court concerned taking into account provisions of Order 19, Rule 1 of the Code could very well have passed an order treating it to be evidence or requiring defendant to lead evidence in terms of the Proviso thereto. Such a course of action having not been taken by the court concerned clearly leads to deficiency in exercise of jurisdiction. 17. Learned counsel for answering opposite party has laid much emphasis on the decision in Basant Singh(supra) to submit that in view of specific provisions of Order 5 of the Code as well as section 27 of the General Clauses Act, once it has not been denied by defendant that the address and name of defendant on the notice/summons were correct and it was sent by registered post, in view of deeming clause, presumption of service would be inherent due to which there is no error in the impugned order. 18. With regard to aforesaid judgment, it is no doubt true that in terms of order 5 of the Code as well as section 27 of the General Clauses Act, the presumption with regard to service upon defendant is clearly made out once the notice satisfies the conditions enumerated therein. 18. With regard to aforesaid judgment, it is no doubt true that in terms of order 5 of the Code as well as section 27 of the General Clauses Act, the presumption with regard to service upon defendant is clearly made out once the notice satisfies the conditions enumerated therein. However, as has been indicated herein above, such a presumption is rebuttable as has been held by Hon'ble the Supreme Court in Puwada Venkateswara Rao(supra). There cannot be any dispute with the proposition of law laid down in Basant Singh(supra) that presumption of notice is inherent once conditions of Order 5 are fulfilled but the second aspect of the matter arises once such a presumption is rebutted in the manner indicated in the judgment rendered by Hon'ble the Supreme Court. 19. Learned counsel for answering opposite parties has also adverted to a number of decisions pertaining to exercise of powers in revisional jurisdiction under Section 115 of the Code with submission that scope of interference in such revisional jurisdiction is very limited and is only with regard to the aspects indicated in Section 115 of the Code itself and since in the present case, it cannot be said that the court concerned has violated any of the conditions enumerated in Section 115 of the Code the order impugned should not be interfered with. 20. With regard to aforesaid proposition, it is quite clear that a revisional court is entitled to interfere with orders passed by the trial court only in case conditions indicated in Section 115 of the Code are satisfied. 21. As has been noticed herein above, the trial court has rejected the Application under Order 9, Rule 7 of the Code only on the basis of presumption drawn under Order 5, Rule 9 of the Code without adverting to fact that the said presumption was rebuttable and was in fact rebutted by the defendant in the aforesaid application due to which onus shifted upon plaintiff to prove the same. Therefore, the impugned judgment would clearly not be in conformity with the judgment rendered by Hon'ble the Supreme Court and as such would in fact amount to the trial court having failed to exercise a jurisdiction so vested in it as well as having acted with material irregularity, due to which scope of interference in the present revision would be within the four corners of Section 115 of the Code. 22. So far as merits of the Application under Order 9, Rule 7 of the Code are concerned, it is relevant that such an applicant is to be heard in answer to the suit where he appears and assigns good cause for his previous non-appearance. 23. In the Application filed under Order 9, Rule 7 of the Code, the applicant has indicated that firstly, she was never effected with service regarding proceedings of suit; and secondly, she came to know of the proceedings when the person authorized by her had visited the court on 16.07.2021 to pursue the proceedings of another suit pending in the court of Additional Civil Judge (S.D.). 24. In the objections filed to aforesaid application, plaintiff has clearly stated that the aforesaid averment made in the application was incorrect since there was no other case of the defendant listed on 16.07.2021. A questionnaire to corroborate such objection was also brought on record by plaintiff. The said ground taken in the Application under Order 9, Rule 7 of the Code has been rejected by the trial court placing reliance on the questionnaire and objections filed by the defendant that there was no occasion by the person authorized by defendant to have visited the court on 16.07.2021 when there was no case listed. The said averment of the defendant was thereafter found to be untrue on that account. 25. Upon perusal of the Application under Order 9, Rule 7 of the Code, it is evident that in paragraph 4 of the Application, the defendant has not stated that the person authorized by the defendant had visited the court with regard to any case being listed on that date but has in fact stated that he visited the court on 16.07.2021 to pursue proceedings of another suit pending in a particular court. Visiting the court may be for the purposes of meeting a lawyer concerned without listing of a particular case on the said date cannot be said to be an unusual occurrence. In the opinion of this Court, the trial court has taken an unduly technical view of the entire matter. 26. Although learned counsel for answering opposite parties is correct to the extent that in these times, tracking facility of letters and summons sent by Speed Post are available online, a copy of which could have very well been filed by the defendant to prove her case that summons were never effected upon her but at the same time, it is also a relevant factor that hearing in any judicial proceedings should be on merits of the case providing opportunity of hearing to all concerned instead of passing an order ex parte behind back of any party to the proceedings. 27. Hon'ble the Supreme Court in Parimal v. Veena @ Bharti reported in (2011) 3 SCC 545 has held that all efforts should be made to decide a lis between parties after giving opportunity of hearing to all concerned and participation of any party should not be shut out on technical aspects. Although, the aforesaid judgment was in terms of provisions of Order 9, Rule 13 of the Code, but the said proposition of law would have a considerable effect in the present matter as well. 28. It is also not the case of plaintiff that defendant deliberately avoided appearance in Suit after personal service. 29. In view of aforesaid discussion, it is found that the order impugned has clearly been passed by the trial court with material irregularity while declining to exercise a jurisdiction vested in it and is therefore set aside. Consequently, the Application under Order 9, Rule 7 of the Code preferred by the defendant stands allowed. Since Written Statement has already been filed by the sole contesting defendant, the trial court is directed to frame issues in Regular Suit No.760 of 2019 within a period of six weeks from the date a certified copy of this order is brought on record of the proceedings and to commence evidence forthwith. The trial court shall make an endeavour to decide the aforesaid suit proceedings within a period of eighteen months from the date evidence commences without granting undue adjournments to other parties. 30. The trial court shall make an endeavour to decide the aforesaid suit proceedings within a period of eighteen months from the date evidence commences without granting undue adjournments to other parties. 30. Benefit of this order shall be available to petitioner only in case she cooperates in early disposal of the proceedings. 31. Resultantly, the Revision succeeds and is allowed. The parties to bear their own costs.