Gauhati High Court
The Gauhati University vs Md. Babul Chaudhury & 3 Ors on 6 September, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
CRP 191/2015
The Gauhati University ....Petitioner
Versus
Md. Babul Chaudhury & 3 ors. .... Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the Petitioner : Mr. A.C. Sarma, Adv.
For the Respondents : Mr. R. Sharma, Adv.
Date of hearing : 06.09.2017
Date of judgment : 06.09.2017
JUDGMENT AND ORDER(ORAL)
Heard Mr. A. C. Sarma learned counsel for the petitioner as well as Mr. R. Sharma learned counsel appearing for the respondent No.1. None appears on call for the proforma respondent Nos.2, 3 and 4.
2. By filing this application under Article 227 of the Constitution of India the petitioner has challenged the order dated 30.03.2015 passed by the learned Munsiff No.3 Kamrup (M), Guwahati in Misc.(J) Case No.447/2014 arising out of Title Suit No.21/2008, thereby rejecting the application filed by the petitioner under Order IX Rule 7 CPC read with section 151 CPC to vacate the order dated 19.03.2017 to proceed ex-parte against the respondent.
3. In the application for setting aside the party to proceed ex-parte the petitioner has made a specific statement that the said authority i.e. Registrar of Gauhati University became aware of the said notice on 01.09.2014 when the proforma opposite party No.3 came to the Chamber of the Vice Chancellor of the Gauhati University and informed about the pendency of the suit filed by the plaintiff in respect of Faculty's Canteen situated in the campus of the Gauhati University.
4. The petitioner projected that they were not served with the summons issued to the Gauhati Unversity through the Registrar of the University and therefore prays for vacating the order dated 19.03.2010 to proceed ex-parte against the respondent.
5. The learned counsel for the petitioner has referred to the process server report which is annexed to the application as Annexure-5, wherein the process server had reported that the process was served on an employee who was served with a notice of the plaint and it was received by him by putting a signature and seal on the summon. On a perusal of the said process server's report, a photocopy which is on record, although an illegible signature is observed but the impression of the alleged seal is not visible to this Court. The learned counsels for either side also could not show the impression of any official seal therein.
6. The learned counsel for the respondent opposing this application has referred to the statements made in the application as well as objection filed before the Trial Court.
7. It is submitted that even prior to the service of present summons, the plaintiff /respondent No.1 had served a notice dated 06.02.2008 to inform the University authorities i.e. Vice Chancellor/ Registrar about the orders dated 11.01.2008, 15.08.2008 and 04.02.2008 in Misc.(J). Case No.26/2008 by informing the authorities that the case was next fixed on 15.03.2008. He has referred to the signature and seal of the office of the Vice Chancellor of Gauhati University receiving this letter, as well as signature of one Sri. Dilip Sarma, Personal Assistant to the Registrar of the University.
8. It is submitted that the petitioner has taken a false stand and they were already aware of the pendency of the suit by letter dated 06.08.2008, therefore false plea was taken for procuring the order to contest the suit and to get the order of ex-parte vacated on false ground.
9. Having heard the learned counsel for the parties, this Court is of the view that a process server is required to serve notice on the concerned party in accordance with the provision contained in the Order V CPC read in consonance with the relevant provisions under Chapter 3 of the Civil Court rules and Order of Gauhati High Court.
10. As per the various provisions contained under Order V CPC if contains the manner in which the summons must be served on the parties. While under Order V Rule 12 CPC provides that service is to be effected on defendant in person when practicable, or on his agent. It is provided therein that wherever it is practicable, service shall 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. There is no denial of fact that an University is a juristic person and it can only appear through a recognized person which is the Registrar. Now instead of service of notice on the Registrar, if any other employee was served, a process server was required to record the name of the person receiving service and as per the provision of Rule 64 of the Civil Court Rules and Orders of the Gauhati High Court, it requires the serving officer to serve the summons, notice or process after due enquiry on whom the process is served and if the process is served on the person who is not the actual recipient the serving officer is required to serve process in the presence of at least two independent local residents and it is mandated that he shall obtain the endorsement by signature of those persons on the original process.
11. The duty of the Court on accepting the service, amongst other is provided in Rule 64 (ii) of the Civil Court Rules and Orders of the Gauhati High Court the same is as follows:- "This aforesaid rule acquires an identifier if the person who has received the summons is not known."
12. In the present case in hand, the process was served on a person who is admittedly not the Registrar of the Gauhati University. From the signature of the identifier of the person it is not clear who had received its under the circumstances, neither the process server nor the Trial Court can shirk their duty to ensure that the process was served on either the party or to only his authorized agent.
13. It would be also relevant to refer to the provision of Order V Rule 18 CPC which requires that the serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex or cause to be endorsed or annexed, on or to the original summons, 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 which appears to similar with the provision of Rule 64 of the Civil Court Rules and Order of the Gauhati High Court. Therefore, a process server is expected to have atleast this basic knowledge of the manner in which the process is required to be served.
14. Coming to the letter issued by the respondent No.1 to the University authorities informing them about the letter of injunction, this Court is of the view that in the suit the Gauhati University is represented by the Registrar who is only the proforma defendant. Therefore having received a notice of the order of injunction, if they did not have any grievance against the order, then they may not choose to contest the said application and in the present case in hand the University authorities have not challenged the proceeding of Misc.(J) Case No.26/2008. It is also not the case of respondent No.1 that notice of the suit was also served along with the process of Misc. (J) Case No.26/2008 or that the said letter dated 06.02.2008 was accompanied with process for the suit. Therefore it is apparent from the issuance of process on requiring presence of the present petitioner to appear on the basis of process server report on 02.02.2010 that process of the suit was not served on the present petitioner as on 06.02.2008, when the letter of respondent No. 1 informing about the Court's order was served on the University authorities in the said letter.
15. In view of the discussions made above, this Court is of the opinion that the learned Trial Court had erred in law and on facts on accepting the summons to be duly served on the petitioner i.e. Gauhati University, represented by its Registrar, which is found to be contrary from the records. University must be having hundreds of employees and service on anyone cannot constitute service of summons on the institution, who accordingly to the plaint was represented by its Registrar. With reference to the process server report dated 02.02.2010 as the same was not served on the petitioner or its authorized agent, therefore, the impugned order dated 30.03.2015 suffered from jurisdictional error and the same is set aside. Resultantly the Misc. 447/2014 stands allowed.
16. The learned Trial Court shall pass consequential order permitting sufficient time to the present petitioner to contest the suit by filing their written statement.
17. The revision stands allowed. The parties who were duly represented by the their counsel are directed to appear before the learned Trial Court on 20.09.2017 without any further notice to the appellant and by producing a certified copy of this order, shall seek further instructions from the said learned Court.
18. The parties are left to bear their own costs.
JUDGE Parimita