Delhi District Court
Rani vs . Shakuntala on 4 December, 2012
IN THE COURT OF SH. DEVENDER KUMAR, CCJ-CUM-ARC(WEST)
TIS HAZARI COURTS, DELHI.
M-19/12
Rani Vs. Shakuntala
ORDER
Vide this order, I shall dispose of an application U/o 9 rule 13 CPC moved on behalf of the respondent. Arguments on application heard. It is submitted by the counsel for the respondent that the respondent had no knowledge of pendency of present petition as she was never served with the summons and came to know about this petition only after passing of ex-parte judgment. It is further submitted that the petitioner has manipulated the report of 'refusal' in collusion with Court staff. It is further submitted that the respondent has never received any summons and this ex-parte order is liable to be set-aside. It is further submitted that the petitioner has not examined postal authorities to prove the service of refusal and even the service of affixation has been effected without identification of the respondent. It is further submitted that in the absence of examination of process server or postal authorities the service of the respondent could not be proved and this ex-parte judgment is liable to be set- aside. In support of his arguments Ld. Counsel for the respondent has relied upon VIII (2005) SLT 581 titled Shaikh Salim Haji Abdul Khayumsab Vs. Kumar & Ors., 2005 I AD (Delhi) 300 titled Raj Kumar Vs. Brij Lal, AIR 2002 SC 2370, 2009 (5) RCR (Civil) 67 titled Doss and another Vs. Vamanan and 2005 (1) RCR (Civil) 428.
On the other hand, counsel for the petitioner has submitted that the respondent was well aware about the pendency of this case and process was M-19/12 Rani Vs. Shakuntala 1/3 refused by the respondent and endorsement has already been given by the postal authorities on the process. It is further submitted that even process was refused by the daughter of the respondent and it was duly affixed on the spot and now plea taken by the respondent is of no use. It is further submitted that the respondent was also served with the notice U/s 15(1) of DRC Act after passing the judgment and the plea taken by the respondent that she was never served has no substance. It is further submitted that the respondent is not entitled for any order of setting aside of ex-parte decree.
I have heard the arguments and perused the record. Perusal of the record shows that the respondent was proceed ex-parte on the basis of a report on the process of 'refusal' & "premises locked despite various visits" and ultimately by the way of affixation on refusal. The report of 'refusal' was received back by this Court from postal authorities. As per order U/o 5 rule 9 CPC, if a summon is received back with the endorsement of refusal by postal employee or any other person authorized, the Court may declare the summons duly served on the defendant, and even if the process was not received back within 30 days the same may also be declared served. Now the issue arises as to whether this report may be considered as due service? Ld. Counsel for the respondent has relied upon 2005 I AD (Delhi) 300. This judgment is not applicable in the present facts as in the said case AD card was deposited on 29/04/1982, whereas the same was filed before the Court on 27/04/1982 and on the basis of the same the respondent was proceeded ex-patre. Even in the said case the process server refused to identify the respondent. The other judgment AIR 2005 SC 2370 was pronounced on different facts as in said case the defendant refused to accept the summons and process server did not affix the process. All the judgments relied upon by the Ld. Counsel for the respondent are pertaining prior to the amendment M-19/12 Rani Vs. Shakuntala 2/3 in the CPC and are on altogether different facts to the present case. In the present case, the postman has given a report of refusal on the process and as per order U/o 5 rule 9 CPC, the Court has presumed and declared the service as per report of the postal authorities. In view of the facts and circumstance of the case, I am of the considered opinion that respondent did not appear before this Court deliberately and refused to receive the summons. Even non-examination of Process-server is of no use as the postal employee has given his report of refusal which is deemed service. I find no ground to allow this application, hence application dismissed with cost of Rs. 2,000/-. File be consigned to Record Room after due compliance.
Dated:-04/12/2012 (Devender Kumar)
Announced in the open Court. CCJ-cum-ARC (West)
Room No. 139, Tis Hazari Courts
Delhi.
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