Gauhati High Court
Vindhyachal Prasad Singh vs Pranab Kumar Rajkhowa on 9 August, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP 336 of 2011
VINDHYACHAL PRASAD SINGH
S/O LATE DHARAMNATH SINGH, R/O 8/32 TDA BUILDING,
CHALIHA NAGAR, PO/DIST. TINSUKIA, ASSAM.
- Appellants/plaintiffs
Versus-
PRANAB KUMAR RAJKHOWA
S/O LATE JAGAT CH. RAJKHOWA, R/O COLLEGE ROAD,
PO/DIST. TINSUKIA, ASSAM.
- Respondent/Defendants
BEFORE
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
Advocate for the petitioner Mr. S Dutta
Advocate for the respondent Mr. P Bora
Date of hearing & Judgment: 9th August, 2017
JUDGMENT AND ORDER
(ORAL)
Heard Mr. S Dutta, learned counsel appearing on behalf of the petitioner. Also heard Mr. P Bora, learned counsel appearing on behalf of the respondents.
2. The order impugned in this revision petition is the one passed in Misc Appeal Case No.3/2009 passed by the learned Civil Judge, Tinsukia. The present petitioner is the defendant in Title Suit No.70/2006 preferred by the respondent as the plaintiff for ejectment of the tenant petitioner. After registration of the said title suit, the learned Munsiff No.1, Tinsukia, who was allotted to dispose of the said Title Suit was satisfied to direct the respondent/plaintiff to issue summons to the petitioner/defendant both by way of registered post A/D and usual process. The matter was fixed on 25.09.2006. On 25.09.2006, the trial CRP 366 of 2011 Page No.2 court recorded that the summons which was issued to the defendant/petitioner was returned unserved and after going through the report of the process server the trial court was satisfied to issue fresh summons upon the present defendant/petitioner fixing 08.11.2006 for service report. On that date itself, on the verbal submission of the counsel appearing on behalf of the plaintiff/respondent, the trial court allowed the plaintiff/respondent to take steps by substituted manner of service through paper publication. The said order was recorded in the order sheet on 25.09.2006. The trial court while allowing the plaintiff/respondent to take such substituted manner of service recorded that the defendant/petitioner was avoiding service of summons. On the date fixed i.e. on 08.11.2006, the notice so published in the local daily "Dainik Janambhumi" in vernacular was produced before the trial court and expressing satisfaction on the said substituted manner of service, the trial court ordered the matter to precede ex-parte against the present petitioner/defendant. Finally, the said suit was decreed ex-parte against the present petitioner. The said ex-parte decree was passed on 13.12.2006.
3. The present petitioner, who is a tenant under the plaintiff/respondent with respect to the suit premises in the super market at Tinsukia, while coming to open his shop on 16.03.2007 found that the same was locked by new padlocks. On inquiry the defendant/petitioner came to know from the neighboring shop owners that the plaintiff/respondent got the shop premises vacated after removing all the stocks on 12.03.2007. Thereafter, the petitioner filed an application under Order 9 Rule 13 of the Civil Procedure Code, 1908 (CPC) in the trial Court which was registered as Misc(J) Case No.35/2007. In the said application, the petitioner pleaded that no summons were ever served upon him nor he had the knowledge of the notice published in the "Dainik Janambhumi". The petitioner never refused to accept any summons issued by the court and as such he sought for setting aside the ex-parte decree and the execution thereof as he had no knowledge about the institution of the said suit prior to 16.03.2007. CRP 366 of 2011 Page No.3
4. The present plaintiff/respondent objected to the prayer made by the defendant/petitioner. The trial court vide order dated 03.02.2009 dismissed the said application under Order 9 Rule 13 of the CPC. The trial court while dismissing the said application came to the finding that whether summons sent earlier to the defendant/petitioner was proper or not was not a fact in issue because the service was affected in substituted manner of service by way of publication of notice in a daily newspaper. Further the trial court held that as the petitioner failed to mention when he went from Tinsukia to visit his native place at Patna and when he came back, so in view of the same it cannot be determined whether the petitioner was at Tinsukia at the time when the news paper publication was made. So as the publication of summons was properly made it was held that summons was duly served on petitioner.
5. Being aggrieved by the order dated 03.02.2009 of the trial court rejecting the petition under Order 9 Rule 13, the petitioner preferred the Misc Appeal Case No.3/2009 in the court of learned Civil Judge, Tinsukia. The said appeal was dismissed by the said appellate court on 09.05.2011. The appellate court, while going through the records of the suit came to the finding that no summons could be served on the present petitioner as he remained absent from his address. Thereafter, paper publication was made and the date published in the said notice for the appearance of the petitioner was mentioned and as the petitioner/defendant failed to appear before the trial court it presumed that service on the respondents was proper. Finally, the learned court below came to the finding which is reproduced herein below:
"I have carefully considered all the aspects the matter-in-hand. It transpires that although the appellant/petitioner has pleaded that he has no knowledge of filing of the title suit, but I find no illegality in the order passed by the learned " Munsiff in dealing with the provision regarding service of summons. Further I find that the appellant/petitioner had left the suit premises keeping it under lock and key without informing the landlord/op/respondent, as such, the respondent/plaintiff was not in a position to know the exact address either in Bihar or somewhere else. So far the plea that the plaintiff had the knowledge that the appellant had gone to Shillong is CRP 366 of 2011 Page No.4 not acceptable under the facts and circumstances of the case. Because the defendant had been moving from here to there keeping out of the touch of the plaintiff. Under the circumstances the service of notice/summons in ordinary way as well as the substituted service by way of paper publication resorted to by the plaintiff were in accordance with law. In my humble opinion, the applicant has failed to show that he was prevented by any sufficient cause from appearing when the suit was called for hearing.
In view of my discussion and reasons above, I find that the appellant/petitioner had failed to make out a case for setting aside the exparte decree passed by the learned Munsiff. I find the appeal is devoid of merit and accordingly dismissed. The order of the learned lower court is upheld."
6. Thereafter, the present petitioner has come up with this Revision Petition challenging the order passed by the Appellate Court in Misc Appeal Case No.04/2008. Mr. Dutta the learned counsel appearing on behalf of the petitioner submits that as stipulated under Order 5 Rule 20 CPC that before allowing substituted manner of service, a duty was cast upon the court to exhaust all the modes for serving the summons on the defendants as prescribed under Order 5 Rules 12, 15 and 17 but surprisingly such satisfaction has not been recorded by the trial court and straightway on the verbal submission of the counsel of the plaintiff/respondent allowed to take steps by way of substituted manner of service. However, while allowing such manner of steps, the trial court came to the finding that the defendant/petitioner was avoiding service of summons on him. But the court below never even discussed on the basis of which materials on record the said satisfaction was drawn up that the defendant/petitioner was avoiding service of summons as such, Mr. Dutta submits that both the courts below wrongly dismissed the petition under Order 9 Rule 13. In order to support his stand Mr. Dutta relies Smruti Pahariya Vs Sanjay Pahariya reported in (2009) 13 SCC 338 para 14 which is reproduced herein below:
"14. Looking at the service return, the court found that service was not a proper one and the court was also not satisfied with the endorsement of the courier. Under such circumstances, the court's direction on the prayer of the appellant wife, for substituted service under Order 5 Rule 20 of the Civil Procedure Code is not a proper one. Direction for substituted service under Order 5 Rule 20 can be passed only when the court is satisfied "that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way."
CRP 366 of 2011 Page No.5
7. Mr. Dutta further relies Yallawwa (Smt.) Vs. Santavva (Smt) reported in (1997) 11 SCC 159, Para 5 which is reproduced herein below:
"5. The learned counsel for the respondent was also justified in submitting that the trial court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12, 15 and 17 CPC. It must be kept in view that substituted service has to be resorted as the last resort when the defendant cannot be served in the ordinary way and the court is satisfied that there is reason to believe that 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. In the present case, it appears that almost automatically the procedure of substituted service was resorted to."
Thus Mr. Dutta further submits that the order passed by the Appellate Court upholding the Order passed by the trial Court is liable to be set aside.
8. Mr. Bora, on the other hand, submits that it is on record that the process server visited the shop premises twice and on both the occasions, the defendant/petitioner was found absent. Similarly, the steps taken by way of registered post also returned back to the sender by showing the postal remark "addressee left for Guwahati" . In such a situation while materials are very much on record to show that the defendant/petitioner was avoiding service of summons on him, allowing the plaintiff/respondent to take steps by way of substituted manner of service cannot be said to be illegal. It is also submitted that the trial court was satisfied at the time of passing the order and it is not mandatory on the part of the court below to record the same in the order sheet. His submission is if the materials are on record to draw up the satisfaction, that itself is sufficient compliance of the order 5 Rule 20 sub rule 1 CPC. Mr. Bora, accordingly, submits dismissal order of the petition under Order 9 Rule 13 requires no interference by this Court as the process by the substituted manner of service was rightly allowed to be taken by the plaintiff/respondent.
9. Considered the submissions of both the learned counsels. Order 9 Rule 13 CPC stipulates as, in any case of which the decree is passed ex-parte against the defendant he may apply to the Court in which the decree was passed for an order to set it aside. But for CRP 366 of 2011 Page No.6 setting aside, the said defendant must satisfies the Court that summons was not duly served on him or that he was prevented by any sufficient cause when the suit was called on for hearing. The said provision of Order 9 Rule 13 of the CPC specifically stipulates that the summons must not be duly served on the defendants and then only the Court has the authority to set aside the ex-parte decree. In the present case in hand, the trial court was satisfied to hold that notice was duly served on the defendant/petitioner by substituted manner under Order 5 Rule 20 CPC by way of paper publication which itself indicates that summons was not at all served on him. In Naresh Chandra Agarwal Vs. Bank of Baroda reported in AIR 2001 SC 1253 the Hon'ble Apex Court held as follows:
"10....... when a party is sought to be impleaded in a legal proceedings service of notice on such party cannot be a mere formality but should, in fact, a reality."
10. With regard to the issue as to whether the court below is required to record its satisfaction within the ambit and scope of Order 5 Rule 20 sub rule 1 CPC, the ratio laid down by the Hon'ble Apex Court in Smruti Pahariya (supra) and Yallawwa (supra) if considered, are that before allowing any party to take steps by service of summons in substituted manner on the defendants, the provisions stipulated under the CPC, more specifically Order 5 Rules 12, 15 and 17 must be duly applied and exhausted. In the present case in hand, the said steps were not complied and to that affect the Court below even failed to record its satisfaction on the basis of which substituted manner of service under Order 5 rule 20 was issued.
11. Order 5 Rule 12 CPC stipulates that service of summons must be on the defendants in person when practical or on his agent. Order 5 Rule 15 prescribes where service may be on an adult member of defendant's family. Order 5 Rule 17 CPC stipulates the procedure when defendant refuses to accept service or cannot be found out. Order 5 Rule 20 CPC prescribes substituted service on defendants which is reproduced herein below:
"20. Substituted service:- (1) 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 CRP 366 of 2011 Page No.7 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.
[(1A) 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 reside, carried on business or personally worked for gain.] (2) Effect of substituted service:- Service substituted by order of the Court shall be as effectual as if it has been made on the defendant personally.
(3)................................"
If the stipulations of Order 5 Rule 20 Sub Rule (2) is considered it is not the language to mean that the service of summons was duly served but it is deemed to be effectual to that extent only. It is not that such presumption can be equated with service of summons "in reality". It is a fiction only that the service under Order 5 Rule 20 CPC is presumed to be effectual for proceeding further by the court in adjudication of the dispute between the parties to the suit.
12. Under the Indian Evidence Act, 1872 a presumption of fact is itself a relevant fact under Section 3 of the said Act. The said presumption for having the force of relevancy in giving a decision against an issue arising between the parties to the suit itself, must be based on relevant facts Expression of satisfaction before resorting to provision under Order 5 Rule 20 CPC that all the other provisions were exhausted and it comes out that the defendant is avoiding the summons, is to draw that particular presumption which is the legal fiction so created by the sub-rule 2 of Order 5 Rule 20 CPC that the service is deemed to be effectual as if it has been made on the defendant personally. In the said circumstances, the fact of satisfaction so drawn before invoking the jurisdiction under Order 5 Rule 20 CPC by the court becomes the relevant fact on the basis of which the presumption is drawn. In order to have a strong foundation of such presumption, it is mandatory on the part of the court to record its satisfaction before allowing a party in a suit to take steps under Order 5 Rule 20 CRP 366 of 2011 Page No.8 CPC, otherwise the presumption with respect to the effectiveness of the said service would be rendered baseless.
13. In the present case in hand the trial court failed to express its satisfaction and without exhausting the other modes so prescribed by the Code of Civil Procedure simply on the submission of the counsel of the respondent/plaintiff had come to the satisfaction that the defendant/petitioner is avoiding the service of summons on him. This is totally a wrong approach taken by the trial court. The Appellate court too upheld the finding of the trial court that the situation was such that provision Under Order 5 Rule 20 CPC should be invoked. But on what materials the said conclusion was arrived at by the Appellate Court is missing. Accordingly this Revision petition succeeds. The impugned order dated 09.05.2011 passed by the learned Civil Judge, Tinsukia in Misc Appeal No.03/2009 is accordingly set aside and ex-parte judgment and decree dated 13.12.2006 passed in TS No.70/2006 by the Munsiff No.1, Tinsukia is set aside.
14. Send back the LCR.
15. Interim order passed earlier stands vacated.
16. On the submission of both the learned counsels appearing on behalf of the parties to this petition, the parties to this petition shall appear before the trial court below on 21.09.2017 and produce the copy of the order passed by this court, where after on receipt of the LCR necessary steps would be taken by the court below as per law and proceed with TS No.70/2006 and decide the same preferably within a period of 6(six) months from the date of receipt of the records.
JUDGE Rakhi CRP 366 of 2011