Allahabad High Court
Smt. Kusum vs Smt. Bhawana And Ors. on 20 May, 2022
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED ON 24.11.2021 DELIVERED ON 20.05.2022 Court No. - 24 Case :- WRIT - C No. - 26057 of 2021 Petitioner :- Smt. Kusum Respondent :- Smt. Bhawana And Ors. Counsel for Petitioner :- Rudra Mani Shukla Counsel for Respondent :- C.S.C.,Amrendra Nath Tripathi,Avinash Mishra,Rakesh Kumar Chaudhary,Sanjeet Kumar Mishra,Santosh Kumar Pandey And Case :- MATTERS UNDER ARTICLE 227 No. - 26250 of 2021 Petitioner :- Smt.Kusum Respondent :- Smt.Bhawana And Ors. Counsel for Petitioner :- Rudra Mani Shukla Counsel for Respondent :- C.S.C.,Amrendra Nath Tripathi,Avinash Mishra,Rakesh Kumar Chaudhary,Santosh Kumar Pandey Hon'ble Salil Kumar Rai,J.
Both petitions, i.e., Writ - C No. 26057 of 2021 and Matters under Article 227 No. 26250 of 2021 were connected by order dated 17.11.2021 passed by the Court and were heard together and are being decided by a common order.
Heard Sri Girish Chandra Sinha assisted by Sri Rudra Mani Shukla, Advocates for the petitioner, Sri Amrendra Nath Tripathi assisted by Sri Santosh Kumar Pandey, Advocates for respondent no. 1 and Sri Rakesh Kumar Chaudhary, Advocate for respondent nos. 5 and 7, the Election Commission and the State Government represented by their respective Standing Counsel.
The dispute in the present petitions relates to the election of the Gram Pradhan of Village - Ramgarh, Development Block - Shivgarh, Tehsil Raniganj, District Pratapgarh held on 19.4.2021. The post was reserved for woman (General). The petitioner and respondent nos. 1, 2 and 3 were candidates in the elections in which the petitioner was declared elected defeating the respondent no. 1 by a margin of about 60 votes. On 3.6.2021, the respondent no. 1 filed Election Petition, i.e., Case No. 1542 of 2021 under Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as, ''Act') before the Deputy District Magistrate / Sub-Divisional Officer (S.D.O.), Tehsil Raniganj, District Pratapgarh (hereinafter referred to as, ''Prescribed Authority'). The issues in the present case relate to correctness of the proceedings in Case No. 1542 of 2021 and certain orders passed in the case, therefore, the proceedings of the case are being narrated in detail.
It is the case of the petitioner that Election Petition was filed by the lawyer of respondent no. 1 and was accepted by the Prescribed Authority in the absence of respondent no. 1. The order-sheet of the case does not contain any order passed by the Prescribed Authority to issue notice on the Election Petition. An order dated 3.6.2021 directing that notices be issued to the defendants is transcribed on the Election Petition, a copy of which was handed over to the Court during the arguments and was taken on record. The order-sheet of the case shows that on 3.6.2021, the Prescribed Authority only acknowledged the presence of respondent no. 1 and his counsel while submitting the Election Petition and fixed 1.7.2021 as the next date in the case. The order-sheet has been annexed as Annexure No. C.A. - 5 to the counter affidavit of respondent no. 1 filed in Petition No. 26057 of 2021. On 3.6.2021 itself, notices were issued by the office of the Prescribed Authority notifying 15.7.2021 as the date in the case. The copy of the notice is annexed as Annexure 5 to the petition. The notice has not been specifically denied by the respondent no. 1 in his counter affidavit. The order-sheet of the case further shows that on 1.7.2021, the Prescribed Authority took note of the fact that notices had been issued in the case and fixed 15.7.2021 as the next date. The recital on the order-sheet of the case on 1.7.2021 is : - पत्रावली पेश पक्षों को नोटिस जारी किया गया पत्रावली दिनांक 15.7.2021 को पेश हो (Case presented, parties issued notice, Put up on 15.7.2021). On 15.7.2021, the Prescribed Authority recorded that notices had been served on the opposite parties in the election petition and fixed 29.7.2021 as the next date in the case. On 15.7.2021, the respondent no. 1, i.e., the election petitioner also filed an application before the Prescribed Authority alleging that the petitioner was avoiding notice in the election petition and, therefore, notices be issued to the petitioner by registered post. On the aforesaid application, the Prescribed Authority passed an order on the same date directing the Reader of the court to issue notice by registered post. The order to issue notice by registered post has also not been transcribed on the order-sheet of the case but has been transcribed on the application dated 15.7.2021. It appears from the receipts annexed with the counter affidavit of respondent no. 1 in Petition No. 26057 of 2021 that notices by registered post were sent on 19.7.2021. The acknowledgment of the notices sent by registered post to the petitioner were returned back by the Postman with an endorsement dated 24th July, 2021 that the Postman had repeatedly visited the house of the petitioner but was informed by her husband that the petitioner was at Lucknow, therefore, notices were being returned unserved. On 29.7.2021, the respondent no. 1 filed an application, ostensibly under Order 5 Rule 20 of the Code of Civil Procedure, 1908 (hereinafter referred to as, ''CPC') stating that the petitioner was not appearing in the court despite having knowledge of the case, therefore, notices be served on the petitioner through publication in local newspapers. On the application of the petitioner, the Prescribed Authority passed an order dated 29.7.2021 directing the Reader of the court to get the notice of the case published. The order dated 29.7.2021 passed by the Prescribed Authority has also not been transcribed on the order-sheet of the case but is transcribed on the application filed by respondent no. 1. The order-sheet shows that on 29.7.2021, the case was adjourned for 5.8.2021. Notices in pursuance to the order dated 29.7.2021 were published in some Hindi Daily named Lok Mitra on 4.8.2021 and 5.8.2021. On 5.8.2021, the case was adjourned to 12.8.2021 and on 12.8.2021, the case was adjourned for 26.8.2021. The order-sheet of the case indicates that on 26.8.2021, the case was adjourned for 9th September, 2021. However, on 26.8.2021, the respondent no. 1 filed an application before the Prescribed Authority praying that notice in the case be deemed to have been served on the petitioner and the case be considered on merits. No orders were passed on the said application on 26.8.2021 but by his order dated 2.9.2021, transcribed on the application dated 26.8.2021, the Prescribed Authority directed the Reader of the court to get notice of the case published in hindi daily, Amar Ujala. The order dated 2.9.2021 is also not transcribed on the order-sheet of the case and it is relevant to note that 2.9.2021 was not a date fixed in the case. In pursuance to the order dated 2.9.2021, notices were published in Hindi Daily Amar Ujala. The notice of the case published in Amar Ujala has been annexed as Annexure C.A. - 4 with the counter affidavit and it has been stated in Paragraph 14(3) of the counter affidavit that the publication was effected in Amar Ujala dated 2.9.2021. However, a perusal of the document annexed as Annexure CA - 4 of the counter affidavit in Petition No. 26057 of 2021 also contains notifications issued by the Uttar Pradesh Public Service Commission, Swami Vivekanand National Rehabilitation Training Centre and Executive Engineer, Electricity Distribution Division - II, George Town, Prayagraj on 6th September, 2021. Obviously, the notifications could not have been published on a date previous to their issuance and, therefore, the notices could have been published in the newspaper earliest by 7th September, 2021. Thus, the averment in Paragraph 14 (3) of the counter affidavit can not be relied upon so far as the date of publication of the notice is concerned. Till 9.9.2021, the petitioner did not appear in the case, therefore, the Prescribed Authority directed that proceedings be held ex-parte against the petitioner. On the same date, the Prescribed Authority fixed 16.9.2021 to record the evidence of respondent no. 1. On 16.9.2021, the case was adjourned to 23.9.2021 and on 23.9.2021, the affidavits of the witnesses of respondent no. 1, i.e., the election petitioner were filed before the Prescribed Authority and 30.9.2021 was fixed for arguments in the case. On 30.9.2021, the petitioner appeared before the Prescribed Authority and filed an application under Order 9 Rule 7 read with Section 151 CPC for recall of the order dated 9.9.2021. It has been stated in the application dated 30.9.2021 filed by the petitioner that she came to know about the case from rumors in her village and when she inspected the records of the case on 23.9.2021. The application dated 30.9.2021 filed by the petitioner was dismissed by the Prescribed Authority by his order dated 7.10.2021 on the ground that it was not maintainable and the petitioner had the remedy to file an application under Order 9 Rule 13 because the case was fixed for arguments.
Against the order dated 7.10.2021, the petitioner filed a revision under Section 12-C(6) of the Act registered as Misc. Case No. 0245 of 2021 before the District Judge, Pratapgarh. The revision was filed on 13.10.2021. Meanwhile, because no interim order was granted to the petitioner by the revisional court staying the proceedings in the election petition, the hearing of the election petition continued and was concluded on 21.10.2021 and judgment was reserved. The District Judge, Pratapgarh vide his order dated 28.10.2021 dismissed Misc. Case No. 0245 of 2021 holding that as the trial before the Prescribed Authority had concluded during the pendency of revision and only judgment had to be pronounced by the Prescribed Authority, therefore, no effective relief could be given to the petitioner in revision.
Subsequently, by his order dated 1.11.2021, the Prescribed Authority directed for a re-count of the ballots because of certain discrepancies in Forms - 36, 45 and 46.
The orders dated 7.10.2021 passed by the Prescribed Authority and 28.10.2021 passed by the District Judge, Pratapgarh have been challenged in Petition No. 26250 of 2021 and the order dated 1.11.2021 passed by the Prescribed Authority has been challenged in Petition No. 26057 of 2021.
It was argued by the counsel for the petitioner that the application under Order 9 Rule 7 CPC was filed by the petitioner on 30.9.2021, i.e., before the judgment in the case was reserved on 21.10.2021, therefore, the application was maintainable and the Prescribed Authority has wrongly held that the aforesaid application was not maintainable. It was further argued by the counsel for the petitioner that no notice was served on the petitioner in Case No. 1542 of 2021 either through ordinary mode or through registered post. It was further argued by the counsel for the petitioner that service of notice by publication, i.e., substituted service as directed by the Prescribed Authority vide his orders dated 29.7.2021 and 2.9.2021 were contrary to law in as much as the said notices were got published without the Prescribed Authority having recorded his satisfaction that the petitioner was avoiding service of notice in the case. It was argued that the order dated 1.11.2021 has been passed without giving any opportunity of hearing to the petitioner and is also a non-speaking order. It has been alleged in the petition that the Prescribed Authority was acting under the dictates of the local Member of the Legislative Assembly (hereinafter referred to as, ''MLA') who is the brother-in-law of respondent no. 1 / election petitioner. It was argued that for the aforesaid reasons, the orders dated 7.10.2021 and 1.11.2021 are contrary to law and are liable to be set-aside by this Court. In support of his arguments, the counsel for the petitioner has relied on the judgments reported in Sangram Singh vs. Election Tribunal AIR (1955) Supreme Court 425; Arjun Singh vs. Mohindra Kumar & Ors. AIR (1964) Supreme Court 993; Om Prakash vs. Prakash Chand & Ors. AIR (2004) Allahabad 391; Bhagwati Lal vs. Sangeeta (2017) AIR CC 2284 (Rajasthan) and Amrish vs. U.P. Ziladhikari Meerut (2006) 4 ALJ 495.
Rebutting the arguments of the counsel for the petitioner, the counsel for respondent no. 1 has argued that from the recital dated 15.7.2021 recorded on the order-sheet of the case, it is evident that notice of the case was served on the petitioner. It was argued that the petitioner was deliberately avoiding service of notice in the case and, therefore, no illegality had been committed by the Prescribed Authority in getting the notices published under Order 5 Rule 20 CPC. It was argued that the petitioner had been given sufficient opportunity to appear before the Prescribed Authority which he failed to avail. It was argued that the application filed by the petitioner for recall of the order dated 9.9.2021 whereby the Prescribed Authority had decided to proceed ex-parte against the petitioner was not maintainable under Order 9 Rule 7 CPC as the said application had to be filed either on a date preceding the next date fixed in the case or on the next date fixed in the case, i.e., it had to be filed on or before 16.9.2021, and in any case before 23.9.2021. It was further argued that the application filed by the petitioner does not disclose any reason for not appearing before the Prescribed Authority on the different dates fixed in the case before 30.9.2021. It was argued that in the circumstances, there is no illegality in the proceedings conducted by the Prescribed Authority in Case No. 1542 of 2021 and the application of the petitioner under order 9 Rule 7 CPC was rightly dismissed by the Prescribed Authority vide his order dated 7.10.2021. It was further argued that in any case, the petitioner cannot now be permitted to file his written statement as the evidence of respondent no. 1 has already been filed disclosing his evidence in the case and any order permitting the petitioner to file his written statement would seriously prejudice the respondent no. 1. It was further argued that the affidavits filed by the witness of respondent no. 1 proved that illegalities had been committed in counting of ballots and because no written statement was filed by the petitioner, therefore, the averments made by respondent no. 1 in Election Petition instituting Case No. 1542 of 2021 remained un-controverted. It was argued that in the circumstances, the order dated 1.11.2021 passed by the Prescribed Authority is according to law. It was argued that for the aforesaid reasons, the petitions lack merit and are liable to be dismissed. In support of his contention, the counsel for respondent no. 1 has relied on the judgments reported in Prahlad Singh & Anr. vs. Niyaz Ahmad & Ors. AIR (2001) Allahabad 78; Narendra vs. Prescribed Authority & Ors. (2010) 1 ALJ 784 and Nihal Ahmad vs. District Judge, Siddharth Nagar & Ors. (2004 ) 97 RD 252.
I have considered the submissions of the counsel for the parties.
The main issues in the present petitions are as to whether notice of the case can be held to have been served on the defendant - petitioner in accordance with law and whether the application filed by the petitioner under Order 9 Rule 7 CPC was maintainable.
Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as, ''Rules, 1994') prescribes the procedure to be followed in an election petition filed challenging the election of a Gram Pradhan. Section 4 of the Rules, 1994 provides that subject to the provisions of the Act, every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the CPC for the trial of suits.
The provisions in CPC relating to service of summons on a defendant in a suit and relevant for the present case is Order 5 CPC. Order 5 Rule 1 CPC provides that when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant. Order 5 Rule 6 CPC provides that the day fixed in the summons should be such so as to allow the defendant sufficient time to enable him to appear and answer on such day. Order 5 Rule 9 CPC prescribes the different modes of service of notice which includes service by registered post.
Order 5 Rule 20 provides for substituted service. Order 5 Rule 20 is reproduced below : -
"20. 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 cannot 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.
(1-A) Where the Court acting under sub-rule (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.
(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."
(emphasis added) A reading of Order 5 Rule 20 shows that recourse to substituted service can be taken only if 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, summons cannot be served in the ordinary way. Mode of service prescribed under Order 5 Rule 20 CPC is an exceptional mode and can be adopted only in the circumstances enumerated in Rule 20. At this stage, the observations of the Supreme Court in Paragraph No. 14 and 15 in Neerja Realtors Private Limited vs. Janglu (Dead) through Legal Representative (2018) 2 SCC 649 is reproduced below :-
"14. Evidently as the report of the bailiff indicates, he was unable to find the defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order 5 Rule 17. When the application for substituted service was filed before the trial court under Order 5 Rule 20, a cryptic order was passed on 2.9.2011. Order 5 Rule 20 requires the court to be satisfied either 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 cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order 5 Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the trial court failed to apply its mind to the requirements of Order 5 Rule 20 and passed a mechanical order. ...
15. The submission that under Order 5 Rule 20, it was not necessary to affix a copy of the summons at the court house and at the house where the defendant is known to have last resided, once the court had directed service by publication in the newspaper really begs the question. There was a clear breach of the procedure prescribed in Order 5 Rule 17 even antecedent thereto. Besides, the order of the Court does not indicate due application of mind to the requirement of the satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in coming to the conclusion that the ex-parte judgment and order in the suit for specific performance was liable to be set aside."
(emphasis added) A reading of the observations of the Supreme Court in Neerja Realtors (supra) leads to the conclusion that a substituted service under Order 5 Rule 20 CPC would not be a valid service in law if the conditions mentioned in Rule 20 do not exist. Service of notice by the modes prescribed in Order 5 Rule 20 would not be a valid service if the order does not indicate application of mind by the court and its satisfaction that there was reason to believe that the defendant was keeping out of the way for the purpose of avoiding service or that for any other reason, the summons could not be served in the ordinary way.
It is a fundamental principle of law that proceedings in a litigation should not be held behind the back of a party.
The purpose of issuing summons / notice to a defendant in a case is to inform him about the institution of the suit and the date fixed in the case. The defendant should be given sufficient time by the summons to appear and raise his defense. The purpose of issuing summons is to give effect to the rule of audi alteram partem. It was observed by the Supreme Court in Sangram Singh vs. Election Tribunal, Kotah AIR (1955) SC 425 ''that our laws of procedure are grounded on a principle of natural justice which require that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.' It was further observed that ''our laws of procedure should be construed, wherever that is reasonably possible, in light of that principle' and ''no forms or procedure should ever be permitted to exclude the presentation of a litigants' defence.' It was also observed by the Supreme Court in Sangram Singh (supra) that procedural provisions are designed to facilitate justice and are not penal enactments for punishment and penalties. It was observed that too technical a construction of procedural provision that leaves no room for reasonable elasticity of interpretation should be guarded against.
The service of notice on the defendant - petitioner in Election Case No. 1542 of 2021 has to be seen in light of the aforesaid legal position.
The order-sheet indicates that on 3.6.2021, the Prescribed Authority directed that the case be posted for 1.7.2021. The order-sheet of the case does not show that the Prescribed Authority had directed that notices be issued in the case to the defendants. However, the copy of the election petition handed over to the Court by the counsel for the petitioner contains an order by the Prescribed Authority directing the Reader to register the case and to issue notice to the parties and that the case be put up on 1.7.2021. On 1.7.2021, the Prescribed Authority records on the order-sheet that ''notices issued to the parties'. The notice issued in the present case and annexed as Annexure 5 to Petition No. 26057 of 2021 shows that notices were issued on 3.6.2021 fixing 15.7.2021. It is difficult to comprehend as to how notices were issued for 15.7.2021 when by order dated 3.6.2021, the Prescribed Authority had directed that the case be put up on 1.7.2021. If notices were issued in pursuance to the direction of the Prescribed Authority, the same had to be issued for 1.7.2021 and not 15.7.2021. If notice fixing 15.7.2021 was issued on the directions of the Prescribed Authority, then there was no reason for the Prescribed Authority to fix 1.7.2021 as the next date in the case. Apparently, the notice issued by the office of the Prescribed Authority was not on the directions of the Prescribed Authority and, in any case, not according to the directions of the Prescribed Authority. The notice dated 3.6.2021 does not indicate the date fixed in the case by the Prescribed Authority and, therefore, cannot be considered as a valid notice in law.
On the order-sheet of 15.7.2021, the Prescribed Authority records that notices had been served on the defendant and fixed 29.7.2021 as the next date in the case. Interestingly, on 15.7.2021 itself, the election petitioner, i.e., the respondent no. 1 in the present petitions filed an application stating that the defendant - petitioner was avoiding service of notice and, therefore, notice of the case be sent to the defendant - petitioner by registered post. The order-sheet does not contain any order directing service of notice by registered post but as recorded earlier, an order dated 15.7.2021 of the Prescribed Authority is transcribed on the application of respondent no. 1 whereby the Reader of the court was directed to issue notice by registered post. The facts stated in the application dated 15.7.2021 on which the Prescribed Authority relied to pass an order directing issuance of notice by registered post controverts the recital dated 15.7.2021 in the order-sheet. Thus, even if a valid notice, the notice cannot be considered to be served on the petitioner.
The registered post was returned un-served. There is no noting by the Postman that either the petitioner or her husband had refused to receive the registered post. Apparently, the notice by registered post was also not served on the petitioner. There is no declaration by the Prescribed Authority, as required under Order 5 Rule 9(5), that notices sent by registered post had been duly served on the petitioner.
On 29.7.2021, the election petitioner, i.e., respondent no. 1 filed an application ostensibly under Order 5 Rule 20 CPC for publication of notice of the case. The Prescribed Authority made an endorsement on the application itself directing his Reader to get the notices published. The notices were published in Lok Mitra, Pratapgarh on 4.8.2021. It may be noted that the next date fixed in the case was 5.8.2021. On 5.8.2021, the case was adjourned for 12.8.2021. On 12.8.2021, the case was adjourned for 26.8.2021. On 26.8.2021, the respondent no. 1 had filed an application praying that as notices had been served on the defendant - petitioner through publication, therefore, the case may be decided on merits. No order was passed on the aforesaid application on 26.8.2021 but on 2.9.2021, the Prescribed Authority passed an order, transcribed on the application and not on the order-sheet, directing that notices of the case be published in hindi newspaper Amar Ujala. It is to be noted that 2.9.2021 was not a date fixed in the case. It appears that notice in the case was published in Amar Ujala but not before 7th September, 2021. On 9.9.2021, the Presiding Officer directed that the proceedings be held ex-parte against the defendant - petitioner.
The Prescribed Authority while passing orders for publication of notice has not recorded his satisfaction that there was reason to believe that the defendant was keeping out of the way for avoiding service of notice or that for any other reason, notice could not be served on the defendant in the ordinary way. The orders have been mechanically passed on the averment made by respondent no. 1, the election petitioner that the defendant - petitioner was avoiding service of notice and would not appear in the case unless notices are published in local newspapers. The Prescribed Authority, under the Rules, 1994 acts as a Tribunal and is not expected to outsource or delegate his discretion to a litigant. It is the Court / Tribunal and not the litigant who is to be satisfied that the defendant is keeping out of the way for the purpose of avoiding service or that summons cannot be served on the defendant in the ordinary way, before taking recourse to the exceptional mode of substituted service. There is nothing on record to show that the petitioner was keeping out of way for avoiding service of notice or that notice could not be served on the defendant in ordinary way. Further, notices of the case were published in the newspaper one or two days before the dates fixed in the case. The notice was published in Lok Mitra on 4.8.2021 and 5.8.2021 when the date fixed in the case was 5.8.2021. The second notice was published on 7.9.2021 when the date fixed in the case was 9.9.2021. The summons served through the exceptional mode have to also fulfill the requirements of Order 5 Rule 6 CPC, i.e., the summons should give sufficient time to the defendant to enable him to appear and answer the claim of the plaintiff. Apparently, even the notices published in the newspapers did not give sufficient time to the petitioner to enable him to appear and present his case as required under Order 5 Rule 6 CPC. In light of Order 5 Rule 6 CPC and the judgment of the Supreme Court in Neerja Realtors (supra), notice by publication in newspapers on 4.8.2021 and 7.9.2021 were contrary to law.
It has already been held that notice dated 3.6.2021 was not a valid notice. Notice by registered post was returned unserved without any noting of ''refusal to receive'. It has also been held that service through publication was not valid. Thus, notice of the case was not duly served on the defendant - petitioner. Under Order 9 Rule 6(1)(a), the court is empowered to hear the suit ex-parte against the non-appearing defendant only if it is proved that summon was duly served on the defendant. In the facts of the present case, the Prescribed Authority could not have proceeded to hear the case ex-parte against the petitioner. Apparently, the proceedings have been held in violation of the principles of natural justice and without giving the petitioner - defendant any opportunity to put in his defense. The order of the Presiding Officer to proceed ex-parte against the defendant - petitioner was contrary to law and the whole proceedings in Election Case No. 1542 of 2021 starting from 9.9.2021 onwards are liable to be set-aside on the aforesaid ground only.
The other issue that arises in the present appeal is regarding maintainability of the application of the petitioner under Order 9 Rule 7 CPC filed on 30.9.2021, i.e., the date on which the case was posted for arguments after the evidence of the election petitioner, i.e., respondent no. 1, had been filed. At this stage, it would be relevant to reproduce Order 9 Rule 6, Order 9 Rule 7 and Order 9 Rule 13 CPC : -
"6. Procedure when only plaintiff appears.--(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then--
(a) When summons duly served.--If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte;]
(b) When summons not duly served.--If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time.--If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.--Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
13. Setting aside decree ex parte against defendant.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
[Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.] It was argued by the counsel for respondent no. 1 that the application filed by the petitioner on 30.9.2021 for recall of the order dated 9.9.2021 whereby the Presiding Officer had decided to proceed ex-parte against the petitioner was not maintainable under Order 9 Rule 7 CPC because the said application could have been filed on a date preceding the next date fixed in the case, i.e., it had to be filed before 16.9.2021 and in any case before 23.9.2021. In support of his contention, the counsel for respondent no. 1 has relied on a judgment in this Court reported in Prahlad Singh & Anr. vs. Niyaz Ahmad & Ors. AIR (2001) All 78. Paragraph 6, 7 and 8 of the aforesaid judgment, on which the counsel for respondent no. 1 has relied, is reproduced below : -
"6. In this case admittedly the summons were duly served upon the defendants-petitioners. The Court was therefore, rightly passed the order on 19.5.1994 to proceed ex parte under the aforesaid Rule. The next date fixed for hearing after 19.5.1994 was 15.7.1994.
7. Order IX Rule 7 C.P.C. reads as under :
"Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance - where the court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he appeared on the day fixed for his appearance."
8. The application under Order IX Rule 7 C.P.C. as it is evident from the reading of the aforesaid Rule, can be filed at or before the next date fixed for hearing. In the instant case admittedly the application under Order IX Rule 7 C.P.C. was filed by the petitioner on 6.8.1994. It was the date after next date fixed under Order IX Rule 6 C.P.C."
From the reasons given subsequently, it would be apparent that the aforesaid judgment of the learned Single Judge overlooks the law laid down by the Supreme Court in Arjun Singh (supra) and is per incuriam.
Under Order 9 Rule 6(1)(a), the court is empowered to proceed with the hearing of a suit ex-parte if the plaintiff appears and the defendant does not appear when the suit is called on for hearing and it is proved that summons was duly served on the defendant. By virtue of Order 9 Rule 7, if the defendant appears on the next date fixed in the case and assigns good cause for his previous non-appearance, he may be heard in answer to the suit as if he had appeared on the day fixed for his appearance. However, if he is not able to assign good cause for his previous non-appearance, he is not prohibited from appearing in further proceedings of the case but only looses the right to set the clock back as provided in Rule 7. The issue in the present case is whether the right of the defendant under Order 9 Rule 7 CPC expires if he fails to appear on the first adjourned date, i.e., the date fixed by the court on the day the court decides to proceed ex-parte against the defendant or whether the right can also be exercised on subsequent dates, i.e., dates on which the hearing of the case has been subsequently adjourned after the first adjourned date.
After the court decides to proceed ex-parte against the defendant and the defendant does not appear on the adjourned date also, the powers of the court are provided under Order 17 Rule 2 CPC. Order 17 Rule 2 CPC is reproduced below : -
"2. Procedure if parties fail to appear on day fixed.--Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."
Under Order 17 Rule 2 CPC, if any party fails to appear on the adjourned date, the court has the discretion to proceed in any of the modes prescribed under Order 9 CPC or to pass any other order as it thinks fit. In other words, if the defendant fails to appear on the adjourned date, the Court may proceed ex-parte against the defendant as provided in Order 9 Rule 6(1) CPC or may make such order as it thinks fit.
There is nothing in the Civil Procedure Code which indicates that the right of the defendant under Order 9 Rule 7 CPC expires on the next date fixed by the court, i.e., the date fixed by the court on the day the court decides to proceed ex-parte against the defendant. To interpret Order 9 Rule 7 in the manner pleaded by counsel for respondent no. 1 would also be very unreasonable and impractical. As an illustration, lets assume that a defendant in a case had good cause for not appearing before the court on the date fixed in the summons and the court decides to proceed ex-parte against such defendants and on the next date fixed in the case, the defendant again fails to appear and the case is adjourned to some other date. If Order 9 Rule 7 is interpreted as argued by respondent no. 1 and as interpreted by this Court in Prahlad Singh (supra), then the defendant after the adjourned date would prefer not to appear on all subsequent dates, even if he gets knowledge of the case on any subsequent date and would wait to file an application under Order 9 Rule 13 CPC for recall of the ex-parte decree. If the defendant in his application under Order 9 Rule 13 CPC is able to show good cause for not appearing in the case, the decree would be recalled leading to re-trial of the suit unnecessarily delaying final adjudication of rights. Such an interpretation would lead to absurdity and anomaly and is, therefore, to be avoided.
The phrase ''at or before such hearing' only signifies that the application under Order 9 Rule 7 CPC can be filed by the defendant if he appears on any date fixed in the case before the hearing in the case is concluded and if he assigns good cause for his absence on the previous dates, he has the right to set the clock back and be heard in answer to the suit as if he had appeared on the day fixed for his appearance in the summons while the suit is at the trial stage but such an application would not be maintainable if the hearing has completed and only judgment is to be pronounced. After the hearing is concluded and judgment has been reserved by the Court, the defendant cannot file an application under Order 9 Rule 7 but has to wait for the judgment being pronounced and then file an application under Order 9 Rue 13 for recall of the ex-parte decree. In this context, it would be relevant to refer to the observations of the Supreme Court in Paragraph 20 of its judgment reported in Arjun Singh vs. Mohindra Kumar & Ors. AIR (1964) SC 993 :-
"20. ... Order IX Rule 1 requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record is apprised of the fact that the summons has not been duly served on the defendant in order to acquaint him with the proceedings before the Court. Rule 2 contains a proviso applicable to cases where notwithstanding the absence of service of summons, the defendant appears. Rule 3 deals with a case where the plaintiff alongwith the defendant is absent when the suit is called on and empowers the Court to dismiss the suit. Rule 5 deals with a case where the defendant is not served properly and there is default on the part of the plaintiff in having this done. Having thus exhausted the cases where the defendant is not properly served, Rule 6(1)(a) enables the Court to proceed ex-parte where the defendant is absent even after due service. Rule 6 contemplates two cases: (1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and (2) where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case Order IX, Rule 13 would come in. The defendant can, besides filing an appeal or an application for review have recourse to an application under Order IX, Rule 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of Order IX Rule 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non- appearance on the previous day or days he might have the earlier proceedings recalled - "set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX Rule 7 and Order IX Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. .... ln the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) Where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX Rule 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order IX Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order IX Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under Order IX Rule 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX Rule 7. ...."
(emphasis added) In the present case, the defendant - petitioner had appeared and filed his application on 30.9.2021. The facts narrated earlier would show that 30.9.2021 was fixed for arguments in the case and the arguments were concluded on 21.10.2021 when judgment was reserved by the Prescribed Authority. Apparently, the hearing was not concluded and the case was not reserved for judgment before the defendant - petitioner appeared in the case. In view of the aforesaid, the application filed by the petitioner on 30.9.2021 under Order 9 Rule 7 was maintainable.
It was further argued by the counsel for respondent no. 1 that the present application under Order 9 Rule 7 CPC could not have been allowed as the respondent had already disclosed his evidence in the case and allowing the application would prejudice the respondent no. 1. The aforesaid cannot be a reason to reject the application under Order 9 Rule 7 because if the argument is accepted, then no application under Order 9 Rule 13 CPC can ever be allowed because a suit even if decreed ex-parte can be decreed only after the plaintiff has produced his evidence.
In light of the aforesaid, it is held that the application of the petitioner under Order 9 Rule 7 CPC was maintainable and the order dated 7.10.2021 passed by the Prescribed Authority is contrary to law and is liable to be quashed.
For the aforesaid reasons, it is held that the proceedings in Election Petition No. 1542 of 2021 were held in violation of the principles of natural justice and contrary to the procedure prescribed in law and the order dated 7.10.2021 passed by the Prescribed Authority is contrary to law and liable to be quashed. As the proceedings in the election petition have been held in violation of the principles of natural justice, the order dated 1.11.2021 passed by the Prescribed Authority directing for re-count of the ballots is also liable to be quashed. It is clarified that I am not expressing any opinion on the merits of the reasons given in the order dated 1.11.2021 passed by the Prescribed Authority as the same is not required in light of the reasons given above.
Before parting with the case, it would be relevant to note the unusual manner in which the proceedings were held by the Prescribed Authority. The petitioner has alleged that the records and proceedings of the case were manipulated by the Prescribed Authority at the instance of a local MLA. The documents on record of the case do show that the Prescribed Authority has acted unfairly and very arbitrarily in conducting the proceedings in the case. Different orders passed by the Prescribed Authority have been noted on the applications of respondent no. 1 but have not been made a part of the order-sheet. The manner in which the proceedings have been conducted do raise a suspicion that orders were not passed during the court proceedings. The Prescribed Authority acts as a Tribunal while deciding an election petition and is not expected to delegate his discretion to a litigant, howsoever influential, politically or otherwise, the litigant may be. The most improper act of the Prescribed Authority is his order dated 2.9.2021 passed on the application dated 26.8.2021 filed by respondent no. 1. On 26.8.2021, the Prescribed Authority had adjourned the case and fixed 9.9.2021 for hearing. However, the Prescribed Authority heard the case on 2.9.2021 and passed an order for publication of notice. No reasons have been given by the Prescribed Authority to prepone the hearing or the urgency to hear the application dated 26.8.2021 before the date already fixed in the case. Even if all other irregularities committed by the Prescribed Authority are ignored, the impropriety committed by the Prescribed Authority by passing the order dated 2.9.2021, i.e., on a day not fixed in the case, cannot be ignored. The improprieties committed by the Prescribed Authority disqualifies him to act as a Tribunal and to decide issues relating to the rights of the parties. If the Sub-Divisional Officer who conducted the proceedings in Election Case No. 1542 of 2021 is still posted as Sub-Divisional Officer, Raniganj, District Pratapgarh, the District Magistrate, Pratapgarh shall exercise his powers under Rule 4 - Proviso (v) of the Rules, 1994 and shall transfer the case to some other Sub-Divisional Officer for trial. The order shall be passed by the District Magistrate, Pratapgarh by 30.6.2022 and the parties as well as their Counsel shall be informed accordingly. The District Magistrate shall also ensure that after his order nominating another Sub-Divisional Officer to hear the case, the records of the case are transmitted to such Sub-Divisional Officer by 14th of June, 2022.
For the aforesaid reasons, the petitions are allowed. The orders dated 7.10.2021 and 1.11.2021 passed by the Prescribed Authority and all proceedings in Election Case No. 1542 of 2021 from 9.9.2021 onwards are, hereby, quashed. The matter is remanded back for a re-trial of Election Petition No. 1542 of 2021. On 15th July, 2022, the parties shall appear before the Prescribed Authority, to whom the case is transferred by the District Magistrate, who shall grant reasonable opportunity to the petitioner - defendant to file his written statement and proceed to hear the case in accordance with law, as expeditiously as possible, without granting any unnecessary adjournment to either of the parties.
With the aforesaid direction, the petitions are allowed.
Let this order be communicated to the District Magistrate, Pratapgarh by Joint Registrar (Civil) by 6.6.2022.
Order Date :- 20.05.2022 Satyam