Madhya Pradesh High Court
Ram Sanjivan Chaturvedi vs Smt. Vimla Gurjar on 30 January, 2018
1
HIGH COURT OF MADHYA PRADESH
MA No.984/2015
(Ram Sanjivan Chaturvedi vs. Smt. Vimla Gurjar & Others)
Gwalior, Dated : 30.01.2018
Shri H.K.Shukla, learned counsel with Shri Rajiv
Shrivastava, counsel for the appellant.
Shri Kamal Mangal, learned counsel for the respondent
No.1.
With consent heard finally.
The present miscellaneous appeal under Order 43 Rule 1(d) CPC has been preferred by the appellant/defendant being crestfallan by the order dated 18.08.2015 passed by 2nd Additional District Judge, Gwalior in Miscellaneous Civil Case No.29/2013 whereby an application under 9 Rule 13 of CPC for setting aside the ex parte judgment and decree of Civil Suit No.9A/2010 dated 29.11.2010 has been dismissed.
Precisely stated facts of the case are that respondent No.1/plaintiff filed a suit against the appellant/defendant and other respondents for declaration and permanent injunction in respect of the suit property and for setting aside of sale agreement dated 27.04.1999 as null and void.
It appears that trial Court issued the notices of the said civil suit to the appellant but same was not received by the present appellant for the reason that plaintiff did not send the notice on correct address of the appellant, because appellant is resident of Village Goarkhurd, Tehsil Ater, District Bhind wherein in the plaint itself, the address had been mentioned as village Goarkhurd, Tehsil Gohad. Therefore, notice was not received by the appellant. The summons returned back on account of incorrect address. Plaintiffs were 2 HIGH COURT OF MADHYA PRADESH MA No.984/2015 (Ram Sanjivan Chaturvedi vs. Smt. Vimla Gurjar & Others) directed to pay process fee with correct address and further direction to reissue summons for defendant by registered AD post but it appears that plaintiff never submitted the correct address on which the appellant could have served because the change of Tehsil made the whole service of summons ineffective. Meanwhile, the case was lingering on for service of defendant. On 30.08.2010, plaintiff filed an application under Order 5 rule 20 CPC merely on the basis that case is pending for a long time for service of summons. Therefore proper course would be to invoke the provision of substituted service by way of publication. The said application was allowed and plaintiff was allowed to serve respondent through publication. Although the publication was made but even in publication the address was mentioned at Tehsil Gohad and therefore, it appears that defendant did not appear and thereafter he was proceeded ex parte. Therefore, ex parte judgment and decree was passed on 29.11.2010. After almost one year on 27.11.2011 son of plaintiff visited the appellant and informed him about the decision of the Court with a direction to vacate the plot in question. Thereafter, it came to the knowledge of the appellant about passing of such ex parte decree. Thereafter, certified copy was obtained and application under Order 9 Rule 13 CPC was filed. The same was dismissed by the trial Court. Therefore, appellant is before this Court.
According to the learned counsel for the appellant, trial court erred in passing the impugned judgment and decree 3 HIGH COURT OF MADHYA PRADESH MA No.984/2015 (Ram Sanjivan Chaturvedi vs. Smt. Vimla Gurjar & Others) behind the back of the appellant because if the appellant could not be served by the respondent/plaintiff, then it was the duty of the plaintiff to serve the defendant properly but when address itself (mentioned in the plaint) indicates incorrect address then it was bound to happen that summons were never served over the appellant. It is further submitted that even the publication notice is bad in law because it was not served over the appellant on correct address. Appellant lived in a village at Tehsil Ater, whereas address indicates at village at Tehsil Gohad. It is submitted that appellant in his evidence has categorically mentioned the such facts about the service part and looking to the casual attitude adopted by the plaintiff to serve the defendant, it is clear that the plaintiff deliberately allowed the omission of correct address to continue for personal gains.
By placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of M/s Neerja Realtors Pvt Ltd. vs. Janglu (Dead) Through LR. Dated 29.01.2018 as well as the judgments passed by this Court in the cases of Kamal Kishore Sharma Vs. Tarabai, 1990 MPJR 127, Karan Lal Kesharwani Vs. The Sardar House & Ors., 2008 (3) MPHT 168 & Gyasi Nayak Vs. Gyanchandra Jain, 2010 (3) MPLJ 203, the petitioner's counsel prayed for setting aside the impugned orders.
On the other hand, learned counsel for the respondent No.1 opposed the prayer made by the appellant and submits 4 HIGH COURT OF MADHYA PRADESH MA No.984/2015 (Ram Sanjivan Chaturvedi vs. Smt. Vimla Gurjar & Others) that the appellant could not turn up in the litigation despite proper service over him. The application under Order 5 Rule 20 CPC filed for notice through publication and notice was published in Hindi Daily Newspaper which is widely circulated in the vicinity. When appellant did not turn up even after publication of notice then he was proceed ex parte judgment and decree has been passed.
It is further submitted that there are certain contradictions in the submissions of the appellant vis-a-vis the evidence led. He raised certain anomalies crept into the application preferred by the appellant wherein he referred name of his brother-in-law Yatendra Tiwari and Mr. Rajoria, Advocate and in his own evidence he referred name of his nephew Abhishek Tiwari. Similarly through the statement made in the evidence wherein appellant has admitted that he reads newspaper, whenever it is available in the village. Therefore, service was properly effected because appellant used to read newspapers (including Danik Bhaskar) which is widely circulated in the area. Through anomalies in evidence vis-a-vis the pleadings, appellant submits that no case for interference is made out. He referred the Apex Court's judgment in the case of Sunil Poddar and Others vs. Union Bank of India reported in 2008(3) M.P.L.J. 65 and submits that once a summon is published in a newspaper having wide circulation in the locality, then person sought to be served cannot take plea about his ignorance. He also referred the judgment of Coordinate 5 HIGH COURT OF MADHYA PRADESH MA No.984/2015 (Ram Sanjivan Chaturvedi vs. Smt. Vimla Gurjar & Others) Bench of this Court in the case of Narmada Club vs. P.K.Tare reported in 2004(2) MPJR 309. He prayed for dismissal of appeal.
Heard the learned counsel for the parties at length and perused the record.
Here, in the present case, matter pertains to service of summons over the appellant/defendant. Perusal of the plaint reveals that the address of the appellant was referred as respondent of Tehsil Gohad, District Bhind whereas appellant has specifically submitted that he is resident of Tehsil Ater, District Bhind. It is further revealed from perusal of the proceedings of the trial Court that on 27.04.2009 notices were issued for service of defendant and matter was fixed on 07.05.2009. On said date since defendant could not be served, therefore, plaintiff was directed to pay process fee for service of defendant No.1 and matter was placed on 29.06.2009. On the said date the defendant No.1 to 7 were again unserved, whereas defendant No.8 was served. Since he could not appear therefore proceeded ex parte. Matter kept on crawling on different dates in which plaintiff was directed to pay process fee time and again but the defendant No.1/present appellant could not be served. The reason for non-service of present appellant was obvious as referred above because plaintiff never wrote correct address in the plaint. Therefore, presumably, notices were going on incorrect address. Plaintiff was always directed to pay process fee on the correct address of the defendant but 6 HIGH COURT OF MADHYA PRADESH MA No.984/2015 (Ram Sanjivan Chaturvedi vs. Smt. Vimla Gurjar & Others) plaintiff always paid process fee on the incorrect address and this aspect vitiated the whole process of service because process fee was always paid on incorrect address.
Compelled by the circumstances, plaintiff filed an application under Order 5 Rule 20 CPC to serve the defendant through publication and vide order dated 30.08.2010 his application was allowed and publication notice was ordered. On 05.10.2010 after publication of notice when defendant No.1 could not turn up then he was proceeded ex parte and plaintiff was directed to lead his evidence on the next date of hearing i.e. 14.10.2010 and ultimately on dated 29.11.2010 ex parte judgment and decree has been passed.
Perusal of proceedings interestingly in the notice for publication the village of the petitioner reflects as "Tehsil Mehgaon" instead of "Tehsil Gohad" as referred earlier in the plaint but both these Tehsil places are not correct addresses because appellant lived in Tehsil Ater at the relevant point of time. Therefore, for all legitimate and practical purposes, appellant was not properly served on his correct address. Although submission of the respondent was that notice of publication is deemed service but it should always proceed with stipulation that it was effected on correct address. If the address is incorrect then the whole proceedings are vitiated. Publication of notice should be in the vicinity where person resides. In other place, if publication is made then the publication itself becomes incomplete service qua the person 7 HIGH COURT OF MADHYA PRADESH MA No.984/2015 (Ram Sanjivan Chaturvedi vs. Smt. Vimla Gurjar & Others) who is sought to be served. Plaintiff cannot be given premium for her fault of not providing correct address of the defendant No.1. Even from the proceedings it is nowhere gathered that plaintiff intended to service the respondent on the correct address through registered AD mode which could have been an effective mode if the correct address would have been provided. The Hon'ble Apex Court as well as this Court time and again taken a lenient view in respect of service of summons over the defendant. The purpose is obvious because matter as far as practicable be decided on merits and any party may not be given any opportunity to play with process of law. Here, it appears that substantial justice would have been accorded only when appellant would have been given a chance to contest the case. It is not a case where appellant refused the summons to accept or did not appear despite service. It is the case of non-service of summons due to incorrect address.
From the perusal of the evidence, although minor discrepancies appear in the evidence of appellant but said factual discrepancies are not vital enough to shake the case of the appellant. With the passage of time, human beings intent to forget finer aspect of any event. Therefore, fate of the case cannot lie at the mercy of such minor omissions. Therefore, appeal deserves to be allowed.
In the considered opinion of this Court, service was not properly effected over the appellant in the litigation, therefore, it is imperative that appellant be given a chance to 8 HIGH COURT OF MADHYA PRADESH MA No.984/2015 (Ram Sanjivan Chaturvedi vs. Smt. Vimla Gurjar & Others) contest the case on merits. Trial Court erred in proceeding ex parte against the appellant and passing the impugned judgment and decree dated 29.11.2010 in absence of the present appellant/defendant No.1. Trial Court further erred in rejecting the application filed by under Order 9 Rule 13 CPC vide order dated 18.11.2015. Accordingly, order dated 18.11.2015 passed by 2nd Additional District Judge, Gwalior in Miscellaneous Civil Case No.29/2013 and ex parte judgment and decree passed in Civil Suit No.9A/2010 dated 29.11.2010 are hereby set aside. Suit is restored to file and would proceed from the stage where the appellant is treated to be served and proceed from that stage onwards. Since parties are appearing before this Court, therefore, the parties are directed to appear before the trial Court on 14.03.2018 and take guidance from the trial Court for further course of action.
Appeal is allowed and disposed of. No costs.
(Anand Pathak) Judge AK/-
Digitally signed by ANAND KUMARDate: 2018.03.07 14:39:29 +05'30'