Delhi District Court
Samuel Watharkar vs Suryakant on 1 May, 2014
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
CS No. 461/12
Samuel Watharkar
..... Plaintiff
Vs.
Suryakant
..... Defendant
O R D E R
1. Vide this order I shall dispose of an application u/o 9 rule 13 CPC and another application u/s 5 of Limitation Act moved by the defendant.
2. It is stated in the application u/o 9 rule 13 CPC that the defendant came to know about the exparte judgment and decree dated 29.05.2013 only on 15.10.2013 when the court bailiff came to his shop i.e. the suit property for taking possession of the same in compliance of court order. The defendant's counsel inspected the judicial case file on 21.10.2013 and came to know about the passing of exparte order against the defendant on 04.01.2013 and thereafter passing of exparte judgment and decree dated 29.05.2013. It is alleged that exparte judgment and decree dated 29.05.2013 is based on fraud, mis CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 1 of 8 representation and collusion as summons of the present suit were never served upon the defendant nor the defendant has received any copy of plaint or documents. The concerned post official/postman never met the defendant or his family members and the defendant was out of station on 12.11.2012 and 22.12.2012, the day on which the service of summons was allegedly effected on him. It is further alleged that the defendant was never informed about the pendency of the present suit. Even an FIR against the plaintiff was lodged by the defendant regarding the suit property for trespassing the same, but the plaintiff did not disclose the pendency of the present suit at that point of time. No summons were sent to the defendant through Registered post, Speed Post, Courier, ordinary process or other means of service and even the concerned post man has not been examined regarding his report of refusal. Even the plaintiff has not taken steps in compliance of the court orders for service through District Judge, Ghaziabad, UP and no ordinary summons were received back with the report of refusal or service of summons which means that no summons were ever served personally or through his family members in any manner upon the defendant. Therefore, it has been prayed that exparte order dated 04.01.2013 and exparte judgement and decree dated 29.05.2013 may be set aside and defendant may be granted an opportunity to contest the case on merits.
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3. By way of application u/s 5 of Limitation Act, the defendant is seeking condonation of delay in filing the application u/o 9 rule 13 CPC stating that application could not be moved in time due to the lack of knowledge about the pendency of the present suit as summons of the suit were never served upon the defendant and he came to know about the pendency of the suit only on 15.10.2013. It has been prayed that period of limitation for 30 days from the date of order since 04.01.2013 to 15.10.2013 may be condoned.
4. The plaintiff has contested both the applications by filing separate reply. In reply to the application u/o 9 rule 13 CPC, it is contended that application is time barred and the defendant has not approached the court with clean hand. It is stated that the defendant has been rightly proceeded exparte as it was the defendant who himself had refused to accept the summons and the refusal of summons is considered to be a valid service as per settled law. The defendant had full knowledge of the present case and he himself chose not to appear in the present case and as such the defendant cannot be allowed to take advantage of his own wrongs. The other contents of the application are stated to be wrong and denied and the plaintiff has prayed for dismissal of the application.
5. In reply to application U/s 5 of Limitation Act, the plaintiff has contended that the defendant was duly served with the CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 3 of 8 summons which he refused to accept and he himself had chosen not to appear in the present case and now he cannot be allowed take advantage of his own wrongs. The plaintiff has prayed for dismissal of the application.
6. I have heard the Ld. Counsel for the parties and perused the record carefully.
7. Perusal of the record reveals that plaintiff had filed a suit for possession, permanent and mandatory injunction against the defendant. Summons of the suit were directed to be issued to the defendant vide order dated 16.10.2012 for 19.11.2012. The summons issued to the defendant through speed post received back with the report of refusal. However, defendant was again directed to be served for 04.01.2013 vide order dated 01.12.2012. The defendant was also directed to be served through Ld. District Judge, Ghaziabad, UP. The summons issued to the defendant for 04.01.2013 through speed post received back with the report of 'refusal'. The Ld. Predecessor deemed the same to be a valid served and when the defendant failed to appear in the court, he was proceeded exparte vide order dated 04.01.2013. Thereafter, the plaintiff led exparte evidence and the matter was ultimately decreed in favour of the plaintiff and against the defendant vide order dated 29.05.2013.
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8. Now, by way of present application the defendant contends that he was never served with the summons of the present suit and he had no knowledge about the pendency of the present suit and he came to know about the pendency of the suit only when the court bailiff came to his shop for taking possession of the same and prior to that he had no knowledge about the pendency of the present suit. The defendant has also alleged that the plaintiff has obtained false report of refusal in collusion with the post man. The Ld. Counsel for the defendant has also vehemently argued that without compliance of provisions of order 5 of CPC, the defendant could not be deemed to have been served. He submitted that as per provision of Order 5 Rule 19 of CPC, the concerned process server or post man is required to be examined in case the summons have been refused by the addressee, but in the present case, the post man who allegedly visited the premises of the defendant on 12.11.2012 and 22.12.2012 and gave the report of refusal has not been examined. He further argued that even the post man or process server has not disclosed in his report that who refused to accept the summons. He further argued that on the relevant dates i.e. 12.11.2012 and 22.12.2012, the defendant was out of station when the service of summons was allegedly effected on him and in fact the said report of refusal was given by him in collusion with the plaintiff. In support of his contentions, the Ld. Counsel for the CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 5 of 8 defendant has relied upon the judgement reported in Sushil Kumar Sabharwal Vs. Gurpeeet Singh & Ors. 2002 (3) Supreme 668 and Smt. Veena @ Bharti Vs. Parmil decided by the Hon'ble High Court of Delhi on 17.07.2007.
9. On the other hand, Ld. Counsel for plaintiff has argued that the defendant himself has refused to accept the summons and the post man has given correct report of refusal, which was accepted by the court and defendant was deemed to be served. He further argued that defendant has not disclosed where he had gone on 12.11.2012 and 22.12.2012, when the process server visited his premises and plaintiff has no role in getting the report of refusal. He further argued that if summons issued by registered post bearing correct address of defendant and same is returned back by postal authorities with report of refusal, there is presumption of service. In this regard, the Ld. Counsel for the plaintiff has relied upon the authority titled as I.D. Sharma Vs. Kapil Kohli, CM (M) No. 578 of 2011.
10. From the aforesaid narration of the facts, it is clear that the defendant was proceeded exparte on the basis of deemed service as the summons sent to the defendant through speed post were received back with the report of refusal. As per the defendant, neither he nor any of his family member ever met any post man and therefore CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 6 of 8 question of refusing the summons does not arise.
11. It is a settled law that if summons issued by registered post bearing correct address of the defendant and is returned by the postal authorities with the report of "refusal", there is presumption of service. However, the said presumption is rebuttable on consideration of evidence of impeccable character and not by mere bald averments or assertions.
12. As stated above, in the present case, the defendant was deemed to be served on the basis of report of refusal given by the postal authorities on speed post issued to the defendant. However, the said presumption is rebuttable. The report of post man on the basis of which the defendant was proceeded exparte is dated 12.11.2012 and 22.12.2012. The defendant has specifically stated in the present application that he was out of station on 12.11.2012 and 22.12.2012 when the post main allegedly visited his premises to serve the summons and gave the report of "refusal". The concerned process server/post man has not been examined in this case. As such, there is disputed question of fact as to whether the defendant was out of station on 12.11.2012 and 22.12.2012 when the post man visited his premises and he did not refuse to accept the summons as contended by the defendant or that the defendant has refused to accept the summons on 12.11.2012 and 22.12.2012 as per the report of post man, CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 7 of 8 and same cannot be decided at this stage without leading evidence. The onus is upon the defendant to rebut the presumption of service on account of refusal of summons, for which evidence is required. Hence, the applications moved by the defendant cannot be decided at this stage without evidence. Therefore, the defendant is required to lead evidence on the application.
Announced in the open Court (Balwant Rai Bansal) on 1st May, 2014 Addl. District Judge 02 (SouthEast) Saket Courts, New Delhi CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 8 of 8 CS No. 461/12 Samuel Watharkar Vs. Suryakant 01.05.2014 Present: None.
Vide my separate order of even date, it is observed that the applications moved by the defendant u/o 9 rule 13 CPC and u/s 5 of Limitation Act seeking condonation of delay in moving the application u/o 9 rule 13 CPC, cannot be decided at this stage without leading evidence by the defendant on the application.
Put up on 29.05.2014 for evidence of defendant on the application.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 01.05.2014 CS No. 461/12 Samuel Watharkar Vs. Suryakant Page 9 of 8