Delhi High Court
Virender Singh Bahl vs Y.K. Kapoor on 10 July, 2000
Equivalent citations: AIR2001DELHI79, AIR 2001 DELHI 79, (2001) 1 PUN LR 11, (2000) 55 DRJ 485, (2000) 87 DLT 7, (2001) 2 RECCIVR 190, (2001) 3 CIVLJ 279
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. Petitioner/plaintiff filed Suit No. 3202/91 in this Court. This was suit for specific performance of agreement dated 10.10.1988. Respondent/defendant was issued notice which was duly served and he appeared in the suit. Interim order in favour of the petitioner/plaintiff was passed restraining the respondent/defendant from transferring, alienating or disposing of the suit property in any manner whatsoever. Pecuniary jurisdiction of the District court was raised from Rs. 1 lac to Rs. 5 lacs and all the suits which were pending in this Court upto the value of Rs. 5 lacs were transferred to District Court. Accordingly, this suit was also transferred to District Court and it was marked to Sh. I.S. Mehta, learned Additional District Judge. It was listed before him on 10.5.1994. However as he was on leave on that date, it was adjourned to 18.5.1994. On 18.5.1994, Court notices were issued to both the parties for 8.11.1994. On 8.11.1994 also nobody appeared. After recording that plaintiff had been served by affixation of summons and as nobody appeared on behalf of the plaintiff, suit was dismissed in default. Thereafter the petitioner/plaintiff filed an application under order 9 rule 4 readwith section 151 CPC for restoration of the suit in which it was, inter alia, submitted that he had not received any notice from the transferee Court, and therefore, he had not appeared on 8.11.1994. He further stated in the application that his counsel was informed by the respondent/defendant's counsel that the case was listed on 8.3.1995 and accordingly when he appeared on 8.3.1995, he did not find the case in the cause list and on inquiry from Ahalmad, he was told that the suit has been dismissed for non-appearance on 8.11.1994. After ascertaining this position, he filed application under order 9 rule 4 CPC for restoration of the suit submitting that as no Court notice was served upon him, there was sufficient cause for non-appearance. It was also submitted that the Court had not ordered service by affixation of summons, and therefore, process server could not effect the service allegedly by affixation of summons and on such a report, Court should not have dismissed the case for non-appearance. Reply was filed to the said application by the respondent/defendant herein and after hearing both the parties, by impugned order dated 29.7.1995, the learned ADJ dismissed the application on the ground that the same was time barred as suit was dismissed on 8.11.1994 and the application for restoration was moved only on 23.3.1995. Against the aforesaid order, present revision petition was preferred which was admitted on 4.7.1996 and in CM 3024/95 filed by the petitioner, this Court passed the order restraining the respondent/defendant from transferring, eliminating or disposing of the suit property in any manner whatsoever during the pendency of the revision petition.
2. After going through the petition, contents of application under Order 9 Rule 4 CPC filed by the petitioner before the Trial Court as well as its reply filed by the respondent/defendant herein, I am of the considered view that impugned order warrants to be set aside. It cannot be denied that after the suit was transferred from this Court to the District Court, fresh notice of the suit was to be served upon both the parties. In fact by order dated 18.5.1994, Court had directed that notice be issued to both the parties. Orders dated 18.5.1994 & 8.11.1994 being relevant are quoted below :
"18.5.94 Present: None. Court notice be issued to both the parties as well as their counsel for 8.11.94.
8.11.94 Present: None. The plaintiff has been served by affixation of summons. None has appeared on behalf of the plaintiff. It is 12.28 p.m. Case of the plaintiff is dismissed in default. File be consigned to record room."
3. From the aforesaid order sheets, the following position emerges:
a) Nobody appeared for plaintiff or defendant either on 18.5.1994 or on 8.11.1994.
b) Court notice was directed to be served on the parties by order dated 18.5.1994. There was no order for serving the parties by affixation of summons.
4. Order V of CPC deals with service of summons. As per Order V Rule 12, wherever it is practicable, service has to be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. The same can be applied when Court notice is served on both the parties including the plaintiff. As per aforesaid provision, normally service has to be effected on the party in person. In terms of Order V, Rule 16 CPC on tendering such summons, the process server is required to obtain the signature of the defendant or his agent etc. (or the plaintiff as the case may be) to whom the summons are so delivered or tendered. It is only when the person to whom the summons are tendered, refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant (or the plaintiff as the case may be), the serving officer shall affix the 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, and shall then return the original to the court from which it was issued, with a report endorsed thereon and 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 is nothing on record to show that the plaintiff was tendered the summons personally or that he refused to accept the same. The service by affixation could be done only if the plaintiff had refused to give the acknowledgment when tendered with the summons.
5. Rather it has been categorically stated by the petitioner in application under order 9 rule 4 CPC that petitioner had not been served with the summons, and therefore, he was not aware of the date of hearing i.e. 8.11.1994 and for want of service he could not appear on the said date. When the plaintiff has not been served with the summons in accordance with law and the alleged service is no service in the eyes of law, the obvious conclusion is that plaintiff was not at all served with the summons. In the absence of service, the Trial Court could not have dismissed the suit in default. Therefore, there was sufficient cause of non-appearance by the plaintiff on 8.11.1994 and the proper course which the learned Tril Court should have adopted was to issue fresh summons. It may be stated at the cost of repetition that even the defendant was not present on 8.11.1994. Learned Trial Court, in the impugned order, has not dealt with this aspect at all i.e. whether there was any service and/or service as per law effected upon the plaintiff or not. In fact, as mentioned above, the application of the plaintiff is dismissed merely on the ground that it is barred by time. However dismissing the application on this ground by the Trial Court was not proper when it was a case of "no service" and non-appearance of the plaintiff on 8.11.1994 because of this reason. It is now well settled that any order passed against a party, which has not been served with the notice, is nullity in the eyes of law. Supreme Court observed so in the case of Grindlays Bank Ltd. Vs. C.G.I.T. & Ors., reported in 1981 L.I.C. 155 in the following words.
"We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cuase, and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings. It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh."
6. Thus when the petitioner was not served with the summons and/or there was no proper service in accordance with law and order dated 8.11.1994 was nullity, the question of application for condensation of delay being time barred, does not arise. Even otherwise, it was the case of the petitioner before the Trial Court that on 8.3.1995 only he came to know that the suit was dismissed for plaintiff's non-appearance on 8.11.1994 and he moved the application under Order 9 Rule 4 CPC on 23.3.1995 i.e. within 15 days of coming to know about the dismissal of suit. Therefore application could not have been dismissed as time barred even on this ground.
7. The result of my aforesaid discussion is that this Civil Revision succeeds inasmuch as the learned ADJ has not exercised his jurisdiction properly in dealing with application of the petitioner under Order 9 Rule 4 CPC and the impugned order definitely occasions failure of justice. The impugned order dated 29.7.1995 is accordingly set aside. Application filed by the petitioner under Order 9 Rule 4 CPC is hereby allowed. Suit is restored to its original number. The Trial Court is directed to proceed with the said suit on merits after serving the notice to both the parties. Copy of this order be sent to the Trial Court. Order dated 4.7.1996 passed in CM 3024/95 shall remain in force till the application of the plaintiff under order 39 rule 1 & 2 pending in the suit is decided.
8. There shall be no order as to costs.