Chattisgarh High Court
Vijay Prasad Chaudhary vs Mamta Devi And Another on 29 June, 2011
HIGH COURT OF CHATTISGARH BILASPUR
CR No 69 of 2011
Vijay Prasad Chaudhary
...Petitioners
Versus
Mamta Devi and another
...Respondents
! Shri Sunil Tripathi counsel for the applicant ^ Shri Akhil Agrawal Panel Lawyer for the State nonapplicant No 2 CORAM: HONBLE SHRI PRASHANT KUMAR MISHRA J Dated: 29/06/2011 : Judgement ORAL ORDER Heard.
(2) In this revision under Section 115 of C.P.C. the applicant has called in question the order passed by the trial Court allowing the respondent Mamta Devi's application under Order 9 Rule 13 of C.P.C. and thereby setting aside the ex-parte judgment and decree dated 20/02/2001.
(3) After passing of the ex-parte judgment and decree on 20/02/2001 the respondent No.1 moved the subject application under Order 9 Rule 13 of C.P.C. for setting aside the ex-parte decree on submission that she has never refused to accept notice and the Postman has made wrong endorsement of her refusal and thus the ex-parte decree deserves to be set-aside. Trial Court has accepted the plea and the ex-parte judgment and decree has been set-aside by the impugned order.
(4) Learned counsel for the applicant would submit that once an endorsement has been made by the Postman regarding refusal of the noticee to accept the postal material containing the summons issued by the Court, it should have been presumed that the said endorsement is correct.
(5) Learned trial Court has rejected similar contention made by the applicant before the Court below on the ground that since on 23/06/2000 the trial Court directed the plaintiff to pay process fee by ordinary as well as by registered post yet the plaintiff paid process fee only for service of notice by registered post and did not pay the process fee for service of notice by ordinary mode, therefore, firstly there was a default by the plaintiff in complying the order of the Court and secondly the endorsement made by the Postman cannot be made basis for proceeding ex-parte when the plaintiff has failed to pay process fee by ordinary mode. (6) In the present case the Postman has not been examined. Rule 17 of Order 5 of C.P.C. prescribes the procedure for service of summons where defendant refuses to accept service, or cannot be found. Rule 19 of Order 5 makes provision to the effect that where a summons 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. (7) From the order passed by the Courts below, it does not appear, that the serving officer had filed an affidavit to verify the endorsement made by him regarding refusal of notice by the noticee. It also does not appear that the Court, while proceeding ex-parte, examined the Postman or has made any further enquiry before declaring that the summons has been duly served. Thus, the learned trial Court committed illegality at the first instance while proceeding ex-parte without following provision contained in Rule 19 of Order 5 of C.P.C.
(8) In the matter of Pavan Sachdeva and another vs. S.M.S. Pharmaceuticals Limited and another reported in (2008) 10 SCC 803 the Hon'ble Supreme Court has held that if the order passed by the trial Court setting aside the ex-parte decree does not suffer from any error of jurisdiction or material irregularity in exercise of jurisdiction, the High Court would not be justified in interfering with the matter under Section 115 of C.P.C. (9) In the present case also this Court has found that the order passed by the trial Court at the first instance was in violation of Order 5 Rule 17 of C.P.C., therefore, while setting aside the ex-parte order, the trial Court has not committed any error of jurisdiction or material irregularity.
(10) There is no scope for interference in this revision, which fails and is hereby dismissed.
JUDGE