Smt. Neeru Sabharwal vs Smt. Indu Bhola on 19 September, 2023

[Cites 3, Cited by 0]

Madhya Pradesh High Court

Smt. Neeru Sabharwal vs Smt. Indu Bhola on 19 September, 2023

2. This second appeal has been preferred by the appellant/defendant challenging the order dated 05.07.2022 passed by Principal District Judge, Jabalpur in MJC No.392/2021 (Civil Appeal) affirming the ex parte judgment and decree dated 18.09.2019 passed by 20th Civil Judge Class-I, Jabalpur in RCS No.1004-A/2018, whereby suit filed by the respondent/plaintiff was decreed and civil appeal filed by the defendant has been dismissed as barred by limitation.

3. In short the facts are that the plaintiff/respondent instituted a suit for declaration of title and permanent injunction in respect of the suit property, situated in Mouza Gorakhpur, Tahsil and District Jabalpur, against the appellant/defendant in which summons was issued to the appellant/defendant which returned unserved with the endorsement of refusal of service, thereupon learned trial Court proceeded ex parte against the appellant/defendant and thereafter fixed the case for ex parte evidence of the plaintiff, but record shows that even after fixing the case for ex parte evidence, learned trial Court permitted the plaintiff to amend the pleadings and to file certain documents even without filing any application under Order 7 Rule 14(3) CPC and thereafter on the basis of ex parte evidence, decreed the suit vide its judgment and decree dated 18.09.2019.

4. Upon getting knowledge of the ex parte judgment and decree passed by trial Court, the appellant/defendant preferred regular civil appeal along with an application under Section 5 of the Limitation Act, which even without registration, has been dismissed as barred by limitation consequent upon dismissal of application under section 5 of the Limitation Act.

5. The second appeal involves following substantial questions of law:-

"(i) Whether learned first appellate Court has erred in dismissing the application under Section 5 of the Limitation Act, taking harsh view ?

(ii) Whether ex parte judgment and decree passed by learned trial Court and affirmed by the first appellate Court, is unsustainable for want of service of summons ?"

6. With consent of learned Counsel for the parties, the second appeal is heard finally. After hearing the counsel for the parties, this Court is of the considered opinion, that the matter deserves to be remanded back to trial Court for decision of civil suit afresh.

Substantial question of law no.(i)

7. Ex parte judgment and decree was passed on 18.09.2019 by trial Court and civil appeal was preferred on 12.08.2021 with delay, along with an application under section 5 of the Limitation Act for condonation of delay, with the contention that the defendant was not served with the summons of plaint and she came to know about ex parte judgment and decree on 27.07.2019 (correct date should be 27.07.2020). With this contention the application was filed, which was opposed with the contention that from the date of knowledge i.e. 27.07.2019, the civil appeal was not filed within time, therefore, it deserves to be dismissed. After hearing arguments, the civil appeal has been dismissed consequent upon dismissal of application under section 5 of the Limitation Act by learned first appellate Court by the impugned order, against which second appeal has been filed.

8. Upon perusal of the entire record, it is clear that in the application under Section 5 of the Limitation Act, the date of knowledge has been mentioned as 27.07.2019, certainly by mistake, which deserves to be read as 27.07.2020. Further it is well known fact that due to spread of Covid- 19, Lockdown was declared w.e.f. 22.03.2020, therefore, in view of the fact that service of summons of plaint was not effected on the defendant, therefore, the civil appeal filed on 12.08.2021 can be said to be within limitation, after excluding the period after 22.03.2020 up to 12.08.2021 and in my considered opinion, learned first appellate Court committed illegality in dismissing the application under Section 5 of the Limitation Act, without taking into consideration the factum of service of summons of plaint, which is always a necessary fact to be considered while considering the question of delay, in any of the proceedings including the civil appeal. Resultantly, substantial question of law no.(i) is decided in favour of the appellant/defendant.

Substantial question of law no.(ii)

9. Record of civil suit shows that notice of the plaint was directed to be issued vide order dated 29.10.2018 and for want of process fee the summons was not issued. Again on 20.11.2018 the plaintiff was directed to pay the process fee for 21.12.2018, on which date the presiding officer was on leave, and the office assistant mentioned in the order sheet that summons received back. On 10.01.2019, it is mentioned in the order sheet that defendant is unserved but on the next date i.e. 14.01.2019 it is mentioned that the defendant or his counsel is not present and case is proceeded ex parte against the defendant. However, no satisfaction has been recorded by learned trial Court in any of the order sheets as to whether the defendant is served or not. Thereafter on 29.01.2019, 21.02.2019, 20.03.2019 & 12.04.2019 case was adjourned for different purposes and on 30.04.2019 the plaintiff prayed for filing original documents.

10. On 08.05.2019 the case was adjourned for the same purpose and on 15.05.2019 on the basis of pleadings and documents of the plaintiff the learned Court framed certain issues unnecessarily and fixed the case for ex parte evidence for 15.07.2019. Due to filing of application for urgent hearing, the date was preponed and case was fixed for 03.07.2019, on which date the plaintiff did not adduce her evidence but filed an application under Order 6 Rule 17 CPC, which was allowed and plaintiff was permitted to amend the plaint and the issue no. 2 was also corrected and then learned Court fixed the case for ex parte evidence for 19.07.2019. On that date the plaintiff filed six documents as per list of documents and on the same date during the course of examination of plaintiff, again the permission was sought by the plaintiff to tender document of 'revocation of annuity' dated 14.06.2017, thereupon learned Court fixed the case for arguments on the question of admissibility of document and the case was adjourned on 01.08.2019 and 21.08.2019 for the same purpose. On 29.08.2019 again the plaintiff filed two more documents as per list of documents and holding the aforesaid document admissible in evidence, the learned Court took other two documents on record, and fixed the case for final arguments, and lastly on 18.09.2019 the suit was decreed ex parte.

11. In the case of Sushil Kumar Sabharwal vs. Gurpreet Singh and other (2002) 5 SCC 377, Hon'ble Supreme Court has, in case of refusal of summons by the defendant, considered the necessity of affixture of summons and copy of plaint and held as under:-

"7. Rules 17 and 18 of order 5, C P C which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read thus "17 Procedure when defendant refuses to accept service, or cannot be found - Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, 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 res - idence 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 a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily reside or carries on business or personally works for gain, and shall then re - turn 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 circum- stances 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. 18. Endorsement of time and manner of service. - The serving officer shall, in all cases in which the summons has been served under rule 16, en-

dorse or annex, or cause to be endorsed or annexed, on or to the original sum- mons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.

8. We find several infirmities and lapses on the part of the process server. Firstly, on the alleged refusal by the defendant, either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the en- dorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by per - sons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correct- ness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling per- sons requested by the process server to witness the proceedings and be a party to the procedure of the service of summons but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt. Incident - ally, we may state that though the date of appearance was 23rd February, 1993 the summons is said to have been tendered on 22nd February, 1993, i.e., just a day before the date of hearing.

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12. The provision contained in order 9, rule 6 of the Code of Civil Procedure, 1908 is pertinent. It contemplates three situations when on a date fixed for hearing, the plaintiff appears and the defendant does not appear and three courses to be followed by the court depending on the given situation. The three situations are : (i) when sum- mons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte. The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being 'proved' that the summons was duly served when and when alone, the court is con- ferred with a discretion to make an order that the suit be heard ex parte. The date ap - pointed for hearing the suit for which the defendant is summoned to appear is a signi- ficant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or casual approach on the part of the court may result in depriving a person of his valuable right to particip - ate in the hearing and may result in a defendant suffering an ex parte decree or pro - ceedings in the suit wherein he was deprived of hearing for no fault of his. If only the trial court would have been conscious of its obligation cast on it by order 9, rule 6 of the Code of Civil Procedure, 1908, the case would not have proceeded ex parte against the defendant appellant and a wasteful period of over eight years would not have been added to the life of this litigation."

12. In the present case, as per endorsement made by process server on the summons, it is clear that upon refusal to accept the summons by the defendant, process server did not affix the summons and copy of plaint on the house of the defendant, which prima facie shows that the service of summons was not effected on the defendant.

13. None of the order sheets of learned trial Court shows that learned trial Court has spared any time to see the endorsement of process server made on summons or to record satisfaction of service. Further, after proceeding ex parte, learned trial Court just contrary to legal procedure, permitted the plaintiff to amend plaint and accepted certain documents even without application under order 7 rule 14(3) CPC and also did not care to serve fresh summons, which in the said circumstances was necessary. Resultantly, substantial question of law no.(ii) is also decided in favour of the appellant/defendant.

14. Resultantly, by deciding both the substantial questions of law in affirmative and in favour of the appellant/defendant, the Judgment and order passed by the learned Courts below, deserve to be set-aside and the second appeal deserves to be and is hereby allowed.

15. With consent, the parties are directed to appear before learned trial Court on 03.10.2023, with the direction to learned trial Court to take the written statement of defendant on record, and only thereafter it shall proceed to decide the suit in accordance with law, after giving due opportunity of hearing to the parties.

16. Interim pending application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE SN Digitally signed by SATTYENDAR NAGDEVE Date: 2023.09.20 14:27:10 +05'30'

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Madhya Pradesh High Court