Himachal Pradesh High Court
Anil Kumari vs Tejaswi Alias Yashpal And Ors on 22 November, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.R. No. 114/2019 Decided on: 22.11.2019 .
Anil Kumari ...... Petitioner
Vs.
Tejaswi alias Yashpal and ors. ..... Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No For the petitioner: Mr. Nimish Gupta, Advocate.
For the Respondents: Mr. Vinod Chauhan, Advocate.
Tarlok Singh Chauhan (oral) Aggrieved by the order passed by the learned District Judge, whereby he rejected the application filed for condonation of delay in filing of the appeal, the petitioner has filed the instant petition.
2 Brief facts giving rise to the present petition are that the petitioner was arrayed as one of the defendants in the civil suit registered as C.S. No. 59/2011 and ex parte decree was passed against her. The decree holder/respondent No.1 then filed 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 26/11/2019 20:23:42 :::HCHP ...2...
an execution petition and even in those proceedings, the petitioner was not served. However, the petitioner claims to have .
acquired knowledge regarding passing of the decree in the first week of June, 2019 and immediately thereafter filed an appeal assailing the ex parte judgment and decree, dated 31.10.2012, that has been passed by the learned Civil Judge (Jr. Div.) Dalhousie, District Chamba in the aforesaid suit. Since the appeal was time barred, therefore, a separate application under Section 5 of the Limitation Act was also filed along with the appeal. In the application, it was specifically stated that the petitioner was a married lady and after her marriage, she was residing with her husband at Jallandhar and not in District Chamba. It is further stated that she had not received any summons by way of ordinary process as well as registered post and respondent No.1 had wrongly got the service effected on her through publication.
3 The learned first appellate court vide order dated 1.8.2019 dismissed the application holding that the petitioner was well aware of the suit and yet she did not choose to appear, therefore, ex parte proceedings against her had rightly been carried out by the learned trial court.
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4 It is vehemently contended by Mr. Nimish Gupta, learned counsel for the petitioner that the findings recorded by .
the learned first appellate court to the effect that the petitioner had knowledge about the pendency of the suit are perverse and therefore, liable to be set aside. In addition thereto, he would argue that even the order, whereby ex parte proceedings have been carried out against the petitioner, is also bad in law.
5 On the other hand, Mr. Vinod Chauhan, learned counsel for respondents would argue that despite the judgment and decree having been passed in favour of respondent No.1 way back in the year 2012, she has not been able to enjoy fruits thereof and the petition is a step ahead to further delay the fruits of the judgment and decree, therefore, the petition should to be dismissed.
6 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
7 Evidently, the only ground on which the learned first appellate court has rejected the application under Section 5 of the Limitation Act is that the petitioner had knowledge about the proceedings and yet she did not choose to put in appearance and thus, was not entitled to any relief whatsoever. This is clearly ::: Downloaded on - 26/11/2019 20:23:42 :::HCHP ...4...
evident from para 12 of the impugned order, which reads as under: .
Having given my best anxious considerable thought to the submissions of Ld. Counsel for the applicant, in my humble considered opinion, that there is no sum and substance in the contention raised at the bar. It is particular to mention that Anil Plah is one of the judgment debtors in the execution petition pending on the files of Civil Judge, Dalhousie, wherein one Smt. Kavita Suman daughter of late Sh. Kuldeep Singh filed objections under Order 21 Rule 97 CPC and Smt. Anil Plah, present applicant, was duly represented by Sh. Nitin Gupta, Advocate. The said objections were decided on 17.5.2019, as such, the plea raised from the side of the applicant that she came to know about the exparte judgment and decree in the month of 2019 is devoid of merit.
8 To say the least, findings recorded by the learned first appellate court are absolutely perverse and contrary to the record because admittedly, Mr. Nitin Gupta, Advocate, never represented the petitioner in the objections under Order 21 Rule 97 CPC, as is evident from the record of the proceedings.
9 It would be noticed that the decree holder/respondent No.1 was represented by Ms. Kiran Singh, Advocate, while there was none for the judgment debtors i.e. Vinod Kumar Plaha, Yogesh Kumar Plaha, Subhash Kumar Plaha and Anil Plaha and ::: Downloaded on - 26/11/2019 20:23:42 :::HCHP ...5...
the objector in that case i.e. Kavita Suman, d/o late Sh. Kuldeep Singh was in fact being represented by Mr. Nitin Gupta, .
Advocate. Therefore, findings being contrary to the record are perverse and liable to be set aside.
10 In addition to above, it is not in dispute that the petitioner herein was ordered to be served through substituted service as is evident from the order dated 1.3.2011,which reads as under: r An application under Order 5 Rule 20 CPC for substituted service of remaining defendants is pending consideration. It is submitted in the application that the defendants No. 1, 2& 4 are evading the service of summons intentionally and deliberately. The application is duly supported with an affidavit. The perusal of reports overleaf the summons issued to defendants No. 1, 2 & 4 shows that they are in private job in Jalandhar and Gujrat and their current addresses are not known. I am satisfied that the addresses of the defendants mentioned in the array of parties are their last known address and it is not possible to serve them in ordinary manner. The application is therefore allowed. Let the defendants No. 1, 2 & 4 be served by way of publication in newspaper the "Tribune" on depositing the publication charges within 15 days for 19.5.2011.
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11 Here again, it deserves to be noticed that the mode and manner in which the then learned Civil Judge(Jr. Div.), .
Dalhousie, has dealt with application under Order 5 Rule 20 CPC and allowed the same cannot be countenanced.
12 This court in OMP No. 4239 of 2013 in CS No. 82of 2008 decided on 26.3.2014 titled M/s ProBono Publico Health Care Ltd and another vs. M/s Reliance Bulk Drugs & Formulations Ltd. and another has held as follows: "15. Order 5 Rule 20 CPC provides that : "Substituted service (1) where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons can not be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court House, and also upon some conspicuous part of the house ( if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. {(1A) Where the Court acting under subrule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain} ::: Downloaded on - 26/11/2019 20:23:42 :::HCHP ...7...
(2) Effect of substituted service Service substituted by order of the Court shall be as effectual as if it had been .
made on the defendant personally.
(3) Where service substituted time for appearance to be fixed Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."
16. A bare reading of the Rule 20 of Order 5 clearly indicates that the powers under this Rule are to be exercised and substituted service of summon is to be ordered when one of the following conditions arises: (1) That the defendant is keeping himself away and is avoiding service of summons.
(2) That for any other reasons, the summons cannot be served in the ordinary way.
17. Therefore, essentially nonfulfillment of either condition necessary for exercise of power would amount to material irregularity and consequently the order is liable to be set aside. The recording of satisfaction at the instance of the Court is a condition precedent required for the exercise of power.
18. In Swami Pragya Nand vs. Ram Swaroop Kapoor and others 1993 (1) SLC 54, it has been held that the provisions or Order 5 Rule 20 CPC are not to be read in isolation but in conjunction with other provision of Order 5 which shows that the order regarding service of defendant by way of publication in the newspaper is to be pressed as a last report when there is no possibility of effecting service on him by other modes as provided therein. It has further been held that before passing order of substituted ::: Downloaded on - 26/11/2019 20:23:42 :::HCHP ...8...
service by publication in the newspaper, the Court must satisfy itself that there are reasons to believe that the .
defendant was keeping out of the way to evade service. If the order of substituted service is passed mechanically by the Court, there is likelihood of misuse of the process of the Court. It would be relevant to refer para9 of the judgment which reads as under: " 9. In the present case, the provisions of Order 5, C.P.C have not been adhered to at all under Rule 12 of Order 5 C.P.C. it is provided that where ever it is practicable, service shall be made on the defendant in person unless he has an agent empowered to accept service in which case service on such agent shall be sufficient. Further, under Rule 15 of Order 5 C.P.C.it is laid down that if the defendant is not found by the Process Server nor has he any authorized agent to accept service of summons, service may be effected on any adult male member of the family of the defendant who may be residing with him.
Under Rule 17 of Order 5, C.P.C., if the serving officer, after using all due and reasonable diligence cannot find the defendant and there is no authorized agent or any male member of the house to accept service, the serving officer should affix a copy of the summons on the outer door or some other conspicuous part of the house in which defendant ordinarily resides or carries on business or personally works for gain and shall make a report relating thereto giving all the facts and circumstances. It is only then the modes of service provided under Rules 15 and 17 of Order 5, C.P.C. are complied with and the Court is satisfied and comes to the conclusion that there are ::: Downloaded on - 26/11/2019 20:23:42 :::HCHP ...9...
reasons to believe that the defendant is keeping out of the way for the purpose of evading service or that for any .
other reasons, the summons cannot be served in ordinary way, the Court may order summons to be served by substituted service which is by affixing a copy on some conspicuous part of the house last resided by him or where he carried on business or personally worked for gain lastly. But this mode of substituted service is to be adopted as a last resort and the Court has been empowered to order service of the defendant in any other manner which has now been clarified in the amended Rule 20(1A) that service may be ordered to be effected through publication in the newspaper. The provisions of Order 5 Rule 20, C.P.C. are not to be read in isolation but in conjunction with earlier provisions which shows that order regarding service of defendant by way of publication in the newspaper is to be passed as a last resort when there is no possibility of effecting service on him by other modes as provided therein. Before passing order of substituted service by publication in the newspaper, the Court must satisfy that there are reasons to believe that the defendant was keeping out of the way to evade service. If the order of substituted service is passed mechanically by the Court, there is likelihood of misuse of the process of the Court. So far the order of substituted service by publication in a newspaper is concerned, it should not be passed lightly without ascertaining whether the prerequisites of Order 5 Rule 20, C.P.C. are fulfilled as it is a matter of common knowledge that generally people do not read court notices in the newspapers. The anxiety of the Courts to expedite ::: Downloaded on - 26/11/2019 20:23:42 :::HCHP ...10...
the proceedings in cases by hurrying up with the service of the defendant by resorting to extraordinary mode of .
substituted service, such as publication in the newspaper, may defeat the very purpose and result in gross injustice (See: Baljit Singh Bhatia v. Kulwant Singh and others, 1978 PLR 287; Kuldip Singh v. Sharan Singh, 1989 (1) PLR 536: Sant Kaur v. Khazan Singh, 1989 CCC 449, Smt. Ishro v. Sarmukh Singh, 1990 (1) PLR 324, Harbhej Singh v. Diwan Singh and others, 1990 CCC 258, and Bijender Singh v. Ranbir Singh and others, 1990 (1) PLR 375."
19. This Court in M/s. AAR KAY TRADERS VS. M/S SATISH r ELELCTRONICS 2008(3) SLC 44 on the interpretation of the amended provisions of the CPC has clearly held that summon cannot be issued by reregistered post .AD, in case defendant resides outside the territorial jurisdiction of the Court.
20. This Court in Swami Pragya Nand vs. Ram Swaroop Kapoor and others (supra) in fact has taken view that "generally people do not read Court notices in the news papers. The anxiety of the courts to expedite the proceedings in cases by hurrying up with the service of the defendant by resorting to extraordinary mode of substituted service, such as publication in the news papers, may defeat the very purpose and result in gross injustice."
13 Judged in light of aforesaid discussion, it can safely be concluded that the procedure adopted by the learned trial court with regard to the service of the petitioner by way of ::: Downloaded on - 26/11/2019 20:23:42 :::HCHP ...11...
publication was not in accordance with law. Therefore, on this ground alone, the application filed by the petitioner for .
condonation of delay ought to have been allowed.
14 In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed. Consequently, the impugned order dated 1.8.2019 is set side and the delay in filing of the appeal is ordered to be condoned and the appeal is ordered to be registered.
15 The parties through their counsel to appear before the learned first appellate court on 2.12.2019.
16 Since the suit was instituted more than 8 years back, therefore, the learned first appellate court is requested to decide the appeal as expeditiously as possible and in no event later than 31.3.2020.
17 Pending application(s), if any, also stands disposed of. The parties are left to bear their own costs.
22.11.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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