Jammu & Kashmir High Court - Srinagar Bench
Ali Mohammad Haroon vs M/S Hyderabad Allwyan Ltd. And Another ... on 17 August, 2009
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CIMA No. 07 of 2007 CMP No. 24 of 2007 Ali Mohammad Haroon Petitioners J&K Bank and others Respondents !Mr. Khan Manzoor Ali, Advocate ^M/s J. Iqbal, Advocate J. A. Kawoosa, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 17/08/2009 :J U D G M E N T:
This Civil 1st Miscellaneous Appeal is filed against order dated 04th of October, 2006 passed by learned Principal District, Judge Budgam vide which the application of the appellant seeking setting aside of the ex-parte decree as also Condonation of delay application were rejected by one composite order.
A civil original suit was instituted by respondent no.1 against the appellant Ali Mohammad Haroon and some other persons for recovery of amount of Rs. 3,72,867.95 (rupees three lacs seventy two thousand eight hundred sixty seven and ninety five paise only) before this Court. The suit was transferred to the court of learned Principal District, Judge Budgam. An ex-parte decree was passed on 25th of June, 2001 in favour of the respondents (plaintiffs) and against the appellant (defendant) for an amount of Rs. 3,72,867.95 (rupees three lacs seventy two thousand eight hundred sixty seven and ninety five paisa only) with interest at the rate of 14=% per annum pendentilite and future interest along with costs.
It appears that application seeking condonation of delay was filed by appellant before learned Principal District, Judge Budgam and along with application seeking cancellation and setting aside of the decree dated 25th of June, 2001 was also filed. In both the applications, it is pleaded by the appellant that in 1989, when the Kashmir valley was ushered into abnormal circumstances, he was forced to leave his house at Azad Basti Natipora and migrated to Delhi. It is further pleaded that from the year 1989 till date of the filing of application the appellant continued to be the resident of Delhi. In the application, he has referred to Electronic Election Card issued by Government of Delhi where the address of the appellant is shown as C-6 Ghonda Extension-C Block, Yemna, Vihar, New Delhi. It is further pleaded in the application that the appellant, in the year 1981, purchased a new Ford Chasis for an amount of Rs. 2, 65,000.00 (rupees two lacs sixty five thousand only) and Rs. 60,000.00 (rupees sixty thousand only) was spent on the fabrication of the body of the Chasis. Appellant has secured financial assistance to the tune of Rs. 2,12,000.00 (rupees two lacs and twelve thousand only) and he has been making payment to the bank in liquidation of the said loan amount. It is further pleaded in both the applications that appellant has no information about the institution of the suit against him filed by the respondent no.1 for recovery of amount as he has not received any notice from the court. In the application, it is pleaded that appellant would send payment in installments to the bank through bank draft from Delhi. It is further pleaded in paragraph-4 of the said application that on 28th of March, 2004, appellant came to attend the marriage ceremony in the house of in-laws of his son at Batamaloo where he was handed over a letter dated 20th of January, 2004 by one Ghulam Rasool Harron issued by respondent no.1 along with copy of decree sheet. It is further pleaded that on the said date appellant learnt about the passing of the ex-parte decree against him for the first time. The appellant filed an application seeking setting aside of the ex-parte decree passed against him which application was filed on 5th of April, 2004. The appellant also filed an application seeking condonation of delay for filing of the above referred application on 05th of April, 2004.
The case of appellant as set up in the application is that he did not receive any notice for institution of the suit having been issued against him from the trial court as he had shifted to Delhi and was not living at the address shown in the suit.
On issuance of notice respondent no.1 filed objections to both the applications wherein it has been pleaded that appellant having his business at Delhi visits his permanent residence at Srinagar from time to time. It is further pleaded that appellant is not a migrant. It is further pleaded that appellant was residing at Barbarshah, Habakadal where he sold his property and shifted to Azad Basti, Natipora and thereafter he was residing near Ziariat Sharief Batamalloo.
The evidence was led by both the parties before the learned trial court and learned trial court by a composite order dated 04th of October, 2006 dismissed the application seeking the condonation of delay in consequence thereof the application seeking setting aside of the ex-parte decree was also ordered to be dismissed. The present appeal is filed against this order.
Heard learned counsel for parties. Considered the matter.
Perusal of the record reveals that suit was initially instituted before this court and this court vide order dated 03rd of August, 1995 transferred the suit to the court of learned Principal District Judge Budgam. In the said order, it was specifically provided that transferee court shall issue notices to the parties before proceeding further in the case. Record reveals that file was received by the trial court on 21st of December, 1995 through registered post. On that date notice was issued to plaintiff as also to the defendants. The address of the defendant no. 1 in the suit is shown as Barbarshah presently at Azad Basti, Natipore, Srinagar-Kashmir. Record further reveals that some of the defendants have died. Notice was issued to the present appellant on 26th of December, 1995 by the trial court showing the address as Barbarshah presently Azad Basti Natipora Srinagar. The report of the process server recorded on the said summons reveals that when he went to effect the service on the appellant he learnt that appellant is not residing at Natipora. Statement of the process server was recorded on oath by Judicial Magistrate 1st Class, Chadora on 10th of February, 1996. In the statement made on oath, the process server Abdul Mohammad Dar stated that report recorded about service of defendants on the summons is true and correct to his knowledge. His statement on oath is signed by said process server.
Record of the learned trial court further reveals that notice was issued to the defendants Ali Mohammad Harron (appellant) and Oriental Insurance Company through registered post. It is on the basis of this notice sent through registered post the trail court initiated exparte proceedings against appellant vide order dated 28th of May, 1997.
Record further reveals that along with summons copy of the plaint was not sent to the appellant. Vide interim order dated 03rd of August, 1996, it is admitted that appellant was not living at the address given in the suit and accordingly service could not be effected on the appellant. In terms of the interim order, respondent no.1 was directed to provide fresh address of the appellant so that summons could be issued and served upon him. Perusal of the interim orders thereafter reveal that no such address was given. The order dated 14th of November, 1996, however, reveals that the acknowledgement card has not been received back by the Court. However, there is no order directing for issuing of summons/notices to the appellant through registered post.
Order-V of the CPC provides the mode, manner and procedure for issuance of summons and their services upon the defendants.
Order-V Rule-2 provides that every summon shall be accompanied by a copy of the plaint, or, if so permitted, by a concise statement. Order-V Rule-2 is reproduced as under:
Every summon shall be accompanied by a copy of the plaint, or, if so permitted, by a concise statement. Order-V Rule 6 provides for fixing of day for appearance of defendants. The said rule is reproduced as under:
The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day. Order-V Rule 19-A provides for simultaneous issue of summons for service by post in addition to personal service. The said rule is reproduced as under: 1. The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive), also direct the summon to be served by registered post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain:
Provided that nothing in this sub-rule shall require the Court to issue a summon for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.
2. When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:
Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reasons, has not been received by the Court within thirty days from the date of issue of the summons. Order-IX Rule-6 of CPC provides when only plaintiff appears. The said rule is reproduced as under:
1. Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then When summons duly served.- [(a) it is proved that the summons was duly served, Court may make an order that the suit be heard ex-parte;] When summons not duly served.- (b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendants;
When summons served but not in due time.- (c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owning to the plaintiffs default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. Order-IX Rule-6 provides that if it is proved that the summons was duly served, Court may make an order that the suit be heard ex-parte. Order-IX Rule 13 refers to setting aside decree ex parte against defendant. The said rule is reproduced as under: In any case in which a decree is passed ex-parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. What emerges from the conjoint reading of the provisions of the C. P. C. that when a suit is instituted summons are to be issued to the defendants and summons issued shall be accompanied with copy of the plaint. It is further revealed by the scheme of statute that due service of summons is to be proved and only thereafter the court can make an order for conducting the proceedings in suit ex-parte. In the present case, record of the trial court reveals that summons have been issued at an address where appellant was not living which fact is proved by the report of the process server as also by statement given by him on oath. In law, this service cannot be said to be due service. Record of the learned trial court further reveals that appellant has been proceeded exparte after issuance of the notice through registered post and said service in the fact and circumstances of this suit cannot be said to be due service in accordance with law as there was no order for issuance of simultaneous service through ordinary mode and by registered post. In fact, the respondent no.1 was directed to give fresh address of the appellant, how the registered notice was issued without there being order from the trial court is a question which begs answer. However, the record of the trial court further reveals that the summons have been issued through registered post in November, 1996 on the address viz Barbarshah, Habakadal, Srinagar when it was already shown to the trial court by the process server that appellant was not residing there. Even the respondent no.1 in his objections filed to the application seeking setting aside of the exparte proceedings has admitted that appellant had shifted from Barbarshah, Habakadal, Sringar to Azad Basti Natipora, Srinagar and thereafter shifted to Batamalloo, so the service through registered post for these reasons cannot be said to be due service in which ex-parte proceedings could have been initiated. The case for setting aside ex-parte decree passed against the appellant in the facts of this case was made out.
Appellant in his application seeking condonation of delay in filing the application seeking setting aside of the ex-parte decree stated that he got the knowledge of the passing of the ex-parte decree on 28th of March, 2004 when he came to Srinagar to attend a marriage function.
Respondent no.1 in his objections has not disputed this averment made in the application and in law it would be deemed that said pleading has been admitted by the respondent no.1. The schedule-1 Division-III of the J&K Limitation Act in terms of Article 164 provides that an application for setting aside of an ex-parte decree be filed within thirty days from the date of the decree or, where summon was not duly served, when the appellant has knowledge of decree. Since it is held in the case that appellant was not duly served, and he having assumed the knowledge for passing of the ex-parte decree on 28th of March, 2004, so the application seeking setting aside of the exparte decree is held to be within time and there was no requirement for filing of the application seeking condonation of delay for seeking setting aside of the exparte decree. Learned counsel for appellant has referred to and relied upon the judgment in case titled M/s Nahar Enterprises Vs. M/s Hyderabad Allwyan Ltd. and another reported in 2007 vol-II SLJ Page 470. The said judgment is almost identical in facts to the case in hand and support the contention of the appellant.
Learned counsel for respondent no.1, Mr. J. Iqbal, however, submitted that this appeal is not competent as the learned trial Judge has not only rejected the application seeking setting aside of the ex-parte decree but has also dismissed the application seeking condonation of delay for filing of the said application. Learned counsel for respondent, however, submits that though the appeal is competent in respect of rejection of application seeking setting aside of the exparte decree, but appellant was required to file separate proceedings for challenging the said composite order of the learned trial Judge when his application for seeking condonation of delay was rejected. At first blush, it appears that the objections raised by the learned counsel for respondent no.1 has to sail through. However for the facts stated and reasons record in this order there was no requirement of filing application for seeking condonation of delay. This appeal is held to be maintainable. Learned counsel for respondent no.1 referred to and placed reliance on case titled Shambunath Dass, petitioner vs. Sirish Ch. Mohapatra, opposite party reported in AIR 1985 Orissa 215. In this case the initiation of ex-parte proceedings on the basis of issuance of notice through registered post was held to be proper as the court had directed for issuance of notice through registered post and defendant had refused to delivery of the postal article containing the notice/summons. The facts of this case are materially different from the said case. In the same case, it has been held that defendant had no notice about the passing of the final decree proceedings and accordingly it was held that the exparte decree is liable to be set aside. This judgment helps the case of the appellant. This appeal is, accordingly, allowed and order impugned dated 04th of October, 2006 in this appeal is set aside. Ex-parte decree dated 25th of June, 2001 is ordered to be set aside subject to payment of cost of Rs. 10,000/- (rupees ten thousand only) to be paid to the respondent no.1. Learned trial court to issue notice to parties. Record be send back.
Disposed of along with all connected CMPs.
Srinagar (Muzaffar Hussain Attar) 17.08.2009 Judge Paramjeet