Manipur High Court
Smt. Laishram Ongbi Mandakini Devi vs Shri Hijam Openjit Singh on 29 July, 2022
Author: Sanjay Kumar
Bench: Sanjay Kumar
KABORAMB Digitally signed
by
AM KABORAMBAM
SANDEEP SANDEEP SINGH IN THE HIGH COURT OF MANIPUR
Date: 2022.07.29 AT IMPHAL
SINGH 15:35:16 -07'00'
CRP(CRP Art.227) NO.11 OF 2019
Smt. Laishram Ongbi Mandakini Devi, aged about 55 years,
w/o L.Joykumar Singh, Laitonjam Makha Leikai,
P.O. & P.S. Nambol, Bishnupur District, Manipur-795126.
...Petitioner
-Versus-
Shri Hijam Openjit Singh, aged about 45 years,
s/o (L) H.Manibabu Singh of Heigrujam Mamang Leikai,
P.O. & P.S. Nambol, Imphal West District, Manipur-795134
... Respondents
BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR For the Petitioner : Mr. T.Rajendra, Advocate For the Respondent : Mr. S.Devajit, Advocate Date of reserving of Order : 22.07.2022 Date of delivery of Order : 29.07.2022 JUDGMENT & ORDER (CAV) [1] The petitioner in this Civil Revision Petition, filed under Article 227 of the Constitution, is the plaintiff in Original (Money) Suit No.3 of 2018 on the file of the learned Civil Judge (Senior Division), Bishnupur. She filed the said suit for recovery of a sum of `20 lakh, based on a promissory note. The defendant in the suit was set ex parte by the Trial Court, vide order dated 21.08.2018. Thereupon, the defendant filed Judicial Miscellaneous Case No.8 of 2019 praying that the order dated 21.08.2018, setting him ex parte, be set aside and to allow him to file his written statement. By order dated 20.02.2019, the Trial Court accepted the defendant's first plea on payment of costs of `300/- and relegated him to the stage of the suit as on 21.08.2018. Aggrieved thereby, the plaintiff filed this revision.
CRP (CRP Art. 227) No.11 of 2019 Page 1 [2] By Order dated 26.04.2019, this Court stayed the suit proceedings. The stay was extended until further orders on 10.05.2019. [3] Heard Mr. T.Rajendra, learned counsel for the petitioner/plaintiff and
Mr. S.Devajit, learned counsel for the respondent/defendant. [4] Parties shall hereinafter be referred to as arrayed before the Trial Court. [5] The case put forth by the defendant in Judicial Miscellaneous Case No.8 of 2018 was that he had no knowledge of the suit till 05.01.2019, when he was informed by one Khomdram Umakanta Singh of Laitonjam Mayai Leikai that he had received summons to appear as a witness before the Trial Court on 08.01.2019 in connection with the suit. According to the defendant, Umakanta Singh informed him that the suit related to a promissory note said to have been executed in favour of the plaintiff by the defendant, wherein he figured as an attesting witness. Umakanta Singh is stated to have said that he had no knowledge of the promissory note and requested the defendant to come with him to the Trial Court. The defendant then stated that, on 10.01.2019, he along with his counsel went to the Trial Court and came to know of the suit. He stated that his enquiry revealed that '12.06.2018' was the date fixed by the Trial Court for appearance of the defendant, but no summons had been returned served on 12.06.2018, as per the Trial Court's records. He further found that a report was submitted by the Process Server on 12.07.2018, stating that the summonee could not be found at his residence and the family members refused to sign and receive the same, and on the strength of the said report, the Trial Court passed order 07.08.2018 permitting publication of the summons in a local daily on two consecutive days, returnable by 21.08.2018. The records showed that copies of the daily 'Naharolgi Thoudang' dated 10.08.2018 and 12.08.2018 were furnished to the Court in proof of such publication having been CRP (CRP Art. 227) No.11 of 2019 Page 2 carried out and, on that basis, the Trial Court passed order dated 21.08.2018 to proceed ex parte against the defendant.
[6] The defendant stated that the records also revealed that points of determination were framed by the Trial Court; that examination of PWs. 1, 2 and 3 was completed and the matter was adjourned to 11.12.2018 for further PW evidence. Having stated so, the defendant asserted that no summons were served upon him or his family members in connection with the suit. He complained that no enquiry was made by the Trial Court by examining the Process Server, who had fabricated his report in collusion with the plaintiff, and he again said that he came to know of the suit only on 05.01.2019. On these grounds, he prayed for setting aside of the order dated 21.08.2018, whereby he was set ex parte in the suit. [7] Opposing the miscellaneous case, the plaintiff filed written objections. Therein, she stated that it was not possible for Umakanta Singh to know that the suit related to a promissory note upon just receiving summons from the Trial Court, if he had no knowledge and was not an attesting witness to the promissory note. She also denied the claim of the defendant that he had no knowledge of the suit despite publication of the summons in the newspapers. She pointed out that the defendant did not claim that he was not at home at the time of such publication and asserted that he intentionally did not appear before the Trial Court in spite of having knowledge of the suit. She pointed out that the report of the Process Server was duly verified by the Nazir of the Court and asserted that the procedure prescribed under Order 5 Rule 19 CPC was duly adhered to. She also denied the allegation of the defendant that the report of the Process Server was manufactured by him in collusion with her so that she could get a decree by giving false information to the Court. She asserted that once substituted service was carried out CRP (CRP Art. 227) No.11 of 2019 Page 3 by way of publication in the newspapers, the issue of service of summons upon the defendant by conventional means did not survive for consideration. She accordingly prayed for dismissal of the miscellaneous case.
[8] Perusal of the order under revision reflects that the Trial Court was of the opinion that an enquiry ought to have been made under Order 5 Rule 19 CPC by examining the Process Server but without taking note of that requirement, substituted service was ordered straightway. The Trial Court took note of precedents which held that the enquiry contemplated under Order 5 Rule 19 CPC is mandatory and opined that the delay on the part of the defendant could be compensated with costs as there was nothing to show that he willfully remained absent in spite of knowledge of the suit. The Trial Court accordingly allowed the miscellaneous case upon payment of costs and relegated the defendant to that stage of the suit, as if he was present on 21.08.2018.
[9] Mr. T.Rajendra, learned counsel, would contend that the petition filed by the defendant was defective inasmuch as two prayers were made therein - (1) to set aside the order dated 21.08.2018, and (2) to allow him to file a written statement. He would assert that it is not open to a party to make multiple prayers in a single petition. He would draw the attention of the Court to Rule 20(2) of the Civil Court Rules and Orders of the Gauhati High Court, applicable in the State of Manipur, which prescribes that applications in regard to distinct subject-matters shall be made in separate petitions. Further, he would point out that no reply was filed by the defendant in this CRP and contend that he could not contest this case on merits. He would assert that provisions of the CPC were adhered to before setting the defendant ex parte and, therefore, the Trial Court ought not to have turned back the clock at such a late stage at the behest of the defendant.
CRP (CRP Art. 227) No.11 of 2019 Page 4 [10] Per contra, Mr. S.Devajit, learned counsel, would contend that the Trial
Court did not comply with the procedure prescribed in law and, therefore, the order dated 21.08.2018 was tainted in its very inception and required to be set aside.
[11] Both the learned counsel relied on case law. [12] In the context of the defendant not filing a reply, Mr. T.Rajendra,
learned counsel, relied on Smt. Naseem Bano vs. State of U.P. & others [AIR 1993 SC 2592]. Therein, the Supreme Court was dealing with a writ petition wherein the respondents had not denied the claim of the petitioners as to the factual position. The Supreme Court held that as the said factual averments had not been controverted, the High Court should have proceeded on the basis that the said averments had been admitted by the respondents. In effect, the Court applied the doctrine of non-traverse, incorporated in Order 8 Rule 5 CPC. [13] In S.P.Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. [AIR 1994 SC 853], the Supreme Court affirmed that one who comes to Court must come with clean hands and a person whose case is based on falsehood has no right to approach the Court and he can be summarily thrown out at any stage of the litigation. This decision is relied upon by Mr. T.Rajendra, learned counsel, on the ground that the defendant made a false claim as to how he came to know of the existence of the suit and for levelling allegations against the Process Server, an officer of the Court, without any material proof. [14] On the other hand, Mr. S.Devajit, learned counsel, placed reliance on Shila Nath Mallik and others vs. Balabhadra Sutradhar and others [AIR 1992 Gauhati 121], wherein a learned Judge of the Gauhati High Court placed reliance on the Full Bench judgment of the Madras High Court in Parasurama Odayar vs. Appadurai Chetty and others [AIR 1970 Madras 271], in the CRP (CRP Art. 227) No.11 of 2019 Page 5 context of Order 5 Rule 19 CPC, and observed that this provision was made to safeguard the interest of the defendant who does not make appearance before the Court in spite of the Process Server's report and to prevent the plaintiff from getting an ex parte decree in collusion with the Process Server. The learned Judge went on to state that the Trial Court must ensure that the defendant had willfully remained absent in spite of knowledge of the suit and this has to be done by examining the Process Server and other witnesses, as thought fit, before deciding to hear the suit ex parte.
Learned counsel also placed reliance on Mojibul Hussain Laskar vs. Sirajul Haque Laskar and others [2017 (4) GLT 185], wherein a learned Judge of the Gauhati High Court affirmed that when a defendant refuses to accept service or cannot be found, the procedure stipulated under Order 5 Rule 19 CPC is mandatory. Lastly, he relied upon Sushil Kumar Sabharwal vs. Gurpreet Singh and others [AIR 2002 SC 2370], wherein the Supreme Court dealt with service of summons and the duty of a Process Server. The Supreme Court held, on facts, that there were infirmities and lapses on the part of the Process Server in that case
- firstly, he did not affix a copy of the summons on the wall of the defendant's shop or if he claimed to have done so, then his endorsement on the back of the summons did not support him or, rather, contradicted him.
[15] In the light of the aforestated settled legal position, the facts of the case on hand may now be examined. The English translation of the Report dated 12.07.2018 submitted by G.Manglemchao Kabui, the Process Server, is placed on record. This report was addressed to the learned Trial Court Judge (Madam) and stated as follows: -
"As per the order, on 09.07.2018 at around 10.00 a.m. in the morning, I went to serve the summons. As the summonee was not available at his CRP (CRP Art. 227) No.11 of 2019 Page 6 residence, I requested his family members to receive the summons on his behalf. The family member refused my request saying that as the person is not available they cannot receive the summons. No one else agrees to be a witness to show that I have come to serve the summons. Hence, I am returning the summons to the court unserved."
At the bottom of the original report, the Nazir of the District & Sessions Court, Imphal West, had endorsed as follows: -
"P.S. or Bailiff says on solemn oath that the contents of this report are true."
[16] The relevant provisions of the Code of Civil Procedure, 1908, may now be examined. Order 5 CPC deals with issue and service of summons. Order 5 Rule 17 CPC deals with the procedure when a defendant refuses to accept service or cannot be found. It reads to the effect that where the defendant refuses to sign the acknowledgement or where the serving office cannot find the defendant, who is absent from his residence at the time service is sought to be effected, 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 resides or carries on business or personally works for gain and shall 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.
Order 5 Rule 19 CPC deals with examination of the serving officer. It reads to the effect that where a summons is returned under Order 5 Rule 17 CPC, CRP (CRP Art. 227) No.11 of 2019 Page 7 the Court shall, if return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.
Order 5 Rule 20 CPC deals with substituted service. Sub-rule (1) thereof provides that where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court House and also upon some conspicuous part of the house (if any), in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Sub-rule (1-A) provides that where the Court, acting under sub-rule (1), orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. [16] The aforestated statutory scheme clearly indicates the sequential order in which the Court should proceed in relation to service of summons. Order 5 Rule 17 CPC details how the Process Server is to act when the defendant either refuses to receive the summons or is not available for service and there is no other agent or other person to whom service can be made instead. The use of the words 'shall' in the said provision posits that there is a mandate cast upon the serving officer to affix a copy of the summons in such circumstances on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or CRP (CRP Art. 227) No.11 of 2019 Page 8 carries on business or personally works for gain. He is mandatorily required to return the original summons to the Court with a report endorsed thereon, stating that he had affixed a copy and detailing the circumstances under which he did so. He is also required to furnish the name and address of the person, if any, who identified the house and, in whose presence, the copy was affixed. It is only the last portion which can be stated to be directory, inasmuch as the words 'if any' have been used. Therefore, it is only when there is a person available to identify the house and, in whose presence, the serving officer affixed a copy, that the name and address of such person are to be furnished by the said serving officer to the Court.
[17] In the case on hand, the report of the Process Server indicates that there was no one who was willing to act as a witness. Therefore, this directory portion of Order 5 Rule 17 CPC stood dispensed with. However, there is no indication of affixture of the summons having been made on the outer door or a conspicuous part of the house of the defendant. This was to be done mandatorily but the report of the Process Server clearly manifests that he did not do so. [18] This being one infirmity, it may be noted that the Trial Court had to follow the procedure prescribed under Order 5 Rule 19 CPC upon receipt of the returned summons under Order 5 Rule 17 CPC. This provision plainly indicates that when such return has been verified by the affidavit of the serving officer, the discretion is with the Trial Court to either examine the said serving officer on oath or make such further enquiry in the matter as it thinks fit. However, if the return of the summons is not verified by an affidavit of the serving officer, the Trial Court is mandatorily bound to examine such serving officer on oath and make such further enquiry in the matter as deemed fit. Form No.11 in Appendix B to the Code of Civil CRP (CRP Art. 227) No.11 of 2019 Page 9 Procedure, 1908, furnishes the format of the affidavit to be filed by a Process Server. Admittedly, in the case on hand, the Process Server did not file an affidavit in the prescribed format. Therefore, the report filed by him could not have been taken to be adequate verification in terms of Order 5 Rule 19 CPC and the Trial Court was duty bound to examine the said Process Server on oath. There is no dispute that the Trial Court did not do so.
[19] As regards the technical objections raised by Mr. T.Rajendra, learned counsel, it may be noted that though the defendant filed a defective petition by combining two prayers therein, the Trial Court did not accept both of them. The order under revision reflects that the Trial Court merely set aside the order dated 21.08.2018, whereby the defendant was set ex parte, and relegated him to the position obtaining as on that date. He would therefore have to take separate steps for filing his written statement belatedly. Mere asking for multiple reliefs in a single petition, therefore, has no fatal effect as the Trial Court considered the petition filed by him for only one single relief. Failure of the defendant to file a reply in this CRP is also of no consequence as the matter turns upon admitted facts and the material on record, in the context of mandatory legal procedures. As regards the contention of the learned counsel that the defendant did not come to the Court with clean hands, it may be noted that the copy of the summons served upon Umakanta Singh, the witness, has not been placed before the Court. No doubt, the format of the summons to a witness in Form No.13 in Appendix B to the Code of Civil Procedure, 1908, does not indicate that details of the suit would be mentioned therein. However, this Court cannot draw any inference, one way or the other, without a copy of the actual summons served upon Umakanta Singh being produced, to verify the defendant's claim that it was Umakanta Singh who told him CRP (CRP Art. 227) No.11 of 2019 Page 10 as to what was the nature of the suit. In any event, even if the defendant tried to overreach himself by falsely claiming that it was the witness who told him what the suit was about, that lapse on his part is not sufficient to overlook the failure of the Process Server and of the Trial Court in following mandatory procedures under the Code of Civil Procedure, 1908. Further, the defendant's allegation against the Process Server is not sufficient in itself to hold that he abused the process of Court. The Process Server clearly failed to abide by the prescribed mandatory procedures and the reasons therefor need not trouble this Court at this time to determine whether he did so out of sheer ignorance, carelessness or otherwise. Further, as mandatory procedures were not followed at the initial stage, the service of summons through substituted service, viz., publication in the newspapers, is wholly insufficient to cure the said defect.
[20] On the above analysis, this Court finds that the Trial Court was fully justified in setting aside the order dated 21.08.2018 and allowing the suit to proceed from the stage obtaining as on 21.08.2018. This Court, therefore, finds no merit in this revision, warranting interference with the order dated 20.02.2019 passed by the learned Civil Judge (Senior Division), Bishnupur, in Judicial Miscellaneous Case No.8 of 2019 {Reference: Original (Money) Suit No.3 of 2018}.
The Civil Revision Petition is accordingly dismissed.
In the circumstances, there shall be no order as to costs.
CHIEF JUSTICE
FR/NFR
Opendro
CRP (CRP Art. 227) No.11 of 2019 Page 11