Madhya Pradesh High Court
Charanlal Patel vs Smt. Kavita Jain And Anr. on 31 January, 1997
Equivalent citations: AIR1998MP16, AIR 1998 MADHYA PRADESH 16
ORDER D.P.S. Chauhan, J.
1. Civil Suit (No. 8-A/94) was filed for ejectment of the present applicant Charanlal Patel on 16-3-94. The notices were issued to him by the civil Court by process and the same were returned with the following endorsements :
^^Jheku th vkt rkjh[k 22&3&94 dks oDr ¼dVk gqvk gS½ cts 'kke foosdkuUn okMZ esa gejkg xokg ds fulkansgh nsus ij edku izfr pj.k yky iVsy ds tkdj rykl fd;k ekywe gqvk ?kj ij ugha gSa dke ij fM;wVh x;k gS blhfy;s rkjh[k is'kh nwj gksus ds dj.k nqckjk rkehyh gsrq lkuh jgkA Hkk- nk- uef/k;k vk- ok- x-
nLr[kr vLi"V 22&3&94 rk-
,d izfr ,oa uD'k layXu gSA Jheku th vkt rkjh[k 24&3&94 dks oDr djhc 10-15 cts eSa fnu iqu% izfr- pj.kyky ds edku ij tkdj izfr- dks rykl fd;k izfr- dk yM+dk iku dh nqdku ij feyk ftldk uke enuyky iVsy gSa us crk;k fd ?kj ij ugha gS dke ij x;sa gS blls izfr- ds rkehy ljhl ckfyx yM+ds enuyky ls firk ds uke dk leal ysus dgk rks Madkj fd;k blls rkjh[k is'kh nwj gksus ds dkj.k nqckjk rkfeyh gsrqlqn izFke izfr- ij vius ikl lkuh j[kkA Hkk- nk- ref/k;k vk- ck- x-
gLrk{kj ¼vLi"V½ 24&3&94 Jheku th vkt rkjh[k 25&3&94 dks oDr djhc 6-15 cts 'kke foosdkuan okMZ esa edku izfr- ds gejkg xokg ds fulknsgh nsus ij x;k izfr- dks rykl fd;k tks edku ij ekStwn feyk ftls leal crk ysus o rgjhj nLr[kr djus dgk rks leal i<k o i<dj okfil djrs gq, ghyk gokyk dj ysus o nLr[kr djus ls badkj fd;k blls izfr- pj.kyky iVsy dks rkjh[k is'kh U;k;k- ls vkxkg dj ,d fdlk leal e; udy uD'ks ds lkFk edku ds vke njokts ij bUdkjh oLik fd;k edku dk njoktk nf{k.k fn'kk dh vksj [kqyk Fkk% n- Hk- nk- lekf/k;k vk- ck-
25&3&94 Laxmichand nsan 622/3 Gole Bazar ¼gsear iksgudj½ xokg nLr J.B.P. 98 Daya Nagar gLrk- ¼ya'ehpUnz½** Jabalpur The trial Court found the service sufficient and proceeded ex parte and the suil was decreed ex parte on 6-5-94.
2. On 15-11 -94, the present applicant filed an application for setting aside theex parte judgment and decree under Order 9 Rule 13 C.P.C. which was rejected by the trial Court on 13-5-96 as the trial Court was not satisfied.
3. Before the trial Court, process server and one Lakhmichand were examined. An appeal was preferred before the lower appellate Court under Order 43 Rule l(a) C.P.C. which appeal was dismissed on 2-12-96 and this order dated 2-12-96 is the subject-matter of the present revision.
4. The revision was not admitted but this Court on 19-12-96 passed an order for listing the revision for final disposal in motion hearing on 20-1-97. The case was listed on 21-1-97 on which date the case was passed over for 22-1 -97 On 22-1 -97 the case was directed to be posted on 28-1-97 and in the meantime the lower Court's record was sought to be requisitioned as per the order dated 19-12-96.
5. Heard the learned counsel for the parties at length.
6. The questions for consideration are;
(i) Whether the service was effected in accordance with the provisions of Order 5 Rule 17 C.P.C.?"
and
(ii) further whether the delay has been properly explained and sufficient cause has been made out?
7. Learned counsel forthe applicant submitted that the requirement of Order 5 Rule 17 C.P.C. not having been complied with, the orders suffer from infirmity, rendering the ex parte decree as illegal.
"17. Procedure when defendant refused to accept service, or cannot be found.- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant (who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix acopy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."
There has been amendment and the proviso was added to the Rule 17 on 16-9-1960 and the said proviso is also quoted below :--
"Provided that where a special service has been issued and the defendant refused to sign the acknowledgment, it shall not be necessary to affix a copy as directed hereinbefore."
8. The learned counsel for the applicant submitted that in this case the process server reported that the present applicant refused to accept the summons. The learned counsel submitted that the requirement of law is that "Where the defendant or his agent or such other person as aforesaid i.e. as provided in the rules, refuses to sign the acknowledgment,", then, the serving Officer shall affix acopy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. The learned counsel for the applicant also placed reliance on Rule 52 of M. P. Civil Court Rules 1961 framed under Section 23 of the Madhya Pradesh Civil Courts Act, 1958. Clause (i) of Rule 52 of the said Act has been relied upon, which says that "A party shall not ordinarily be required to supply an identifier for the purpose of serving a summons or notice or any other process whether issued by any subordinate Court or the High Court or received from a Court outside its jurisdiction, on a defendant, respondent, witness or other person and the serving officer shall serve the summons, notice or process after due enquiry as to the identify of the person on whom, or the house or property where the same is to be served. The serving officer shall, where he is unable to serve the process, obtain, whenever possible, the endorsement by signature or thumb impression of at least the persons of the locality.
9. It is not necessary to diliate on this rule as to whether it is within the rule making power Under Section 23 of the M. P. Civil Courts Act, 1958 or not. However, the rules are subordinate legislation and they cannot be taken out and interpreted independently. Order 5 Rule 17 is not the subordinate legislation. The requirement where a person refuses to accept the notice are three fold.:--
(1) It would be stated is the report that the process server has affixed a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain; (2) state the circumstances under which he did so, means he made the affixation; (3) State the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
10. The proviso to Rule 17 speaks for special service. Special service is not defined under the Code of Civil Procedure. However, the present one is the case where the service was issued by the ordinary process and could not be termed as special service and further it is not a case of either of the parties, and apart from this, relevant controversy is not involved in the present case whether the copy was affixed or not affixed.
11. The report of the process server Bhagwandas Samadhiya is on the record and the report is of 22-3-94, 24-3-94 and 25-3-94 and all the three reports have already been extracted in Para 1 above. The report of earlier two days has nothing to do. So far as the report dated 25th March 1994 is concerned, the learned counsel for the applicant submitted that according to the report dated 24-3-1994, enquiry was made from the son of the defendant who told, his father is not at the house. The person who is said to be the son, was carrying a Pan Shop, and the process server took the summons at the Pan Shop does not establish by evidence that the person who is referred is the son of the defendant, though two persons were examined in the trial Court, one process server himself and the other Lakhmichand. The process server in his report dated 25th March, 1994, has also stated regarding identification of the house but in the report, the name was not disclosed. Two persons were examined, one is process server and the other witness is Lakhmichand but none has stated regarding identification of the house as to who was the witness who identified the house. Lakhmichand who is a witness to refusal of service has stated in his statement that son of the defendant identified the house of the defendant. It is only hearsay, unless it is found that the person on the Pan Shop himself told this: thing that he is the son of the defendant. Neither any finding is recorded on the basis of the evidence that the person who was at the Pan Shop was the son of the defendant. The fact has to be established by evidence. The son has not been examined that he was a witness to identification of the house. Apart from this, the report should have mentioned about the name of the person. In the report, the word used is Hamrah". Even if it was the son who identified the house, then, he was not examined.
12. In view of the above, I am of the view that the service was not effected satisfying the requirement of Order 5 Rule 17 C.P.C.
13. Learned counsel for the opposite side submitted that the defendant derived knowledge of the ex pante decree from his Advocate Shri N. K. Patel and from the date of this knowledge, there has been delay of 15 days which has not been explained and the person who was negligent in the conduct of the proceedings is not entitled for the discretion of the Court.
14. This delay has not been beyond the period of limitation counted from the date of the knowledge. The learned counsel for the respondent relied on Article 123 of the Indian Limitation Act which provides 30 days period of limitation for setting aside the ex parte decree and that period has to be counted from the date of the decree or where the summons or notice was not duly served, when the applicant had the knowledge of the decree. In the present case, I am taking a view that the notices were not served, satisfying the requirement of Rule 17 of Order 5, CPC and therefore, the requirements under Article 123 of the Limitation Act will have to be seen. The requirements of Article 123 of the Limitation Act are two-fold : (i) The date of decree, (ii) or where the summons or notice was not duly served, from the date when the applicant had knowledge of the decree. In this case, so far as the second requirement is concerned, i.e. "or where the summons or notice was not duly served" this aspect of the matter as to when the applicant had the knowledge of the ex parte decree, has not been considered at all, and it is for the applicant to establish as to when he had got the knowledge of the decree. It is not the case where an application for condonation of delay Under Section 5 has been filed pr not, benefit Under Section 5 of the Limitation Act has been extended.
15. In view of this, the revision is allowed. The impugned order dated 2-12-1996 of the Courts below is set aside. The trial Court is directed to examine the matter in relation to the date of the knowledge of the applicant regarding the ex parte decree on the basis of the material already existing on the record, without taking further evidence and without affording any opportunity of adducing further evidence, within a period of one month, from today.