Patna High Court
Firm Harnarain Rajnarain And Ors. vs Smt. Tara Sinha on 1 February, 1974
Equivalent citations: AIR1974PAT351, AIR 1974 PATNA 351
ORDER S.P. Sinha, J.
1. This is an application by the plaintiffs against an order by which the appellate court has allowed the opposite party's application under Order IX, Rule 13 of the Civil Procedure Code (hereinafter to be referred to as the 'Code') and set aside the ex parte decree dated 3-7-1968 passed in Money Suit No. 21 of 1967.
2. The facts lie in a short compass. The plaintiffs, who do business, claim to recover certain amount of money from the opposite party as price of goods having been supplied by them to the opposite party. The said suit was numbered as Money Suit No. 21 of 1967 of the court of Munsif, second court, Buxar. The defendants in the said money suit were three in number including the opposite party, Smt. Tara Sinha. The other two defendants were said to be the agents of the opposite party through whom the opposite party had received the goods from the plaintiffs. The suit was decreed ex parte on the 3rd of July, 1968. The opposite party thereafter filed a petition under Order IX, Rule 13 of the Code for setting aside the ex parte decree. This application was filed on the 15th of July, 1969, that is much beyond 30 days from the passing of the ex parte decree.
3. The petition was resisted by the plaintiffs and one of the main grounds was the ground of limitation. According to the plaintiffs, the summons had been duly served; the opposite party defendant No. 1 having been served on the 29th of April, 1967 in terms of Order V, Rule 17 of the Code and the other two defendants, by a substituted service in terms of Order V, Rule 20 of the Code, on the 2nd of June, 1968. The parties led evidence with regard to their respective cases, the defendant No. 1 asserting that she had no knowledge whatsoever of the suit prior to the 4th of July, 1969, and the plaintiffs asserting to the contrary. Both the parties produced witnesses. The opposite party, as applicant, examined two witnesses and the plaintiffs also examined two witnesses. The learned Munsif considered all the evidence produced by the parties and in one of the paragraphs of his order observed "as I have held that summons of the suit was properly served upon the applicant, it has got to be held that the present application is not maintainable". None of the foregoing paragraphs of his order, however, show that he held like that. The learned Munsif in fact without finding that the summons of the. suit had been properly served, in any of the preceding paragraphs, has made that observation. Be that as it may, the application under Order IX, Rule 13 of the Code having been dismissed, it was appealed against. The appellate court came to the conclusion that the summons had not been duly served and that the applicant got the knowledge of the ex parte decree only on the 4th of July, 1969. It, therefore, allowed the application under Order IX, Rule 13 of the Code holding it to have been filed within time and also good on merits. It is against this order that the civil revision application has been filed before this Court.
4. Mr. Braj Kishore Prasad No. II has submitted that the appellate court had acted with material irregularity in so far as it concerned its finding on the question as to whether or not the summons had been duly served. According to Mr. Prasad, the order was bad, firstly, for the reason that it had committed an error of record in observing that an affidavit as required from the serving peon had not been filed in respect of the service of summons under Order V, Rule 17 of the Code on defendant No. 1 and, secondly, on the ground that although the provision of Rule 14 of Chapter II of the General Rules and Circular Orders of High Court of judicature at Patna, Volume I, was not at all applicable to the summons, the appellate court had made it applicable. An alternative argument was also made that in case the said Rule 14 was held to be applicable, it was merely directory and not mandatory. One of the further arguments was that the substituted service having been made on all the defendants, that service also should have been considered by the appellate court which it had failed to do. Mr. Prasad went to the length of saying that mere entry in the order sheet of the court was good proof of service of summons. In support of that he has relied upon a decision of the Calcutta High Court in Aswini Kumar Das Gupta v. Karamat Ali Khan, AIR 1948 Cal 165. According to Mr. Prasad, therefore, the order passed by the appellate court being fraught with material irregularity was fit to be set aside and the order passed by the trial court was fit to be restored.
5. Mr. Srivastava appearing for the opposite party has submitted, firstly, that the appellate court had committed no error of record with regard to the non-filing of affidavit by the serving peon and, secondly, that Rule 14 of the aforesaid Rules was fully applicable to service of summons in the instant case and the court below had committed no error of law in holding the service to be not proper. Mr. Srivastava further submitted that since the finding arrived at by the appellate court that the summons had not been duly served on the defendant and that the defendant learnt about the ex parte decree only on the 4th of July, 1969, being a finding of fact based on cogent and valid materials, this Court ought not to interfere with its order and more so when substantial justice had been done in the case.
6. The first question which Mr. Prasad for the petitioners has raised relates to an error of record concerning non-filing of the affidavit by the serving peon. Now the learned Munsif had observed that an affidavit as required by law had in fact been filed by the serving peon and that such an affidavit was Ext. C. I have seen Ext. C. The learned Subordinate Judge who heard the appeal held that in proof of the summons having been properly served, the serving peon had not furnished an affidavit or a verification of the identifier. I have seen the service report. I think the observation made by the learned Subordinate Judge is correct. Ext. C is not an affidavit at all. On the back portion of the summons, the serving peon has stated that he met defendant No. 1, who refused to take the summons and to sign acknowledgment and that, therefore, a copy of the summons was hung on the north facing house of respondent No. 1. This has been signed by two persons as witnesses, Rameshwar Tiwary and Suresh Singh and this report of the serving peon is affirmed by the Nazir of the Court. The learned Munsif has thought that this was an affidavit of the serving peon since the service report had been affirmed by the Nazir. In my opinion, it is not so.
7. An affidavit is a statement in writing, with oath of the maker of the state ment subscribed to it before an authority authorized to administer oath. The oath about the truth of the statement must be of the person making the statement. The Civil Procedure Code has prescribed a special form being Form 11 of Appendix B of its First Schedule for affidavit by process server of summons or notice. The mere affirmation by Nazir about the service report, made by the peon, on the back of the notice, is any thing but an affidavit as required in terms of the said form. In the instant case the statement about the service of summons having been effected on defendant No. 1 in terms of Order V, Rule 17 of the Code is of the process server, but the affirmation of the statement is not by the process server but by the Nazir. In my opinion, this is not an affidavit as required for the purpose of Order V, Rule 19 of the Code. The learned Subordinate Judge has, therefore, committed no error of record in saying that there is no affidavit by the process server.
8. The importance of such an affidavit has been very well put in a Full Bench decision in AIR 1970 Mad 271. It reads thus:--
"If there is an affidavit, it means that the serving Officer has stated something on oath and, if the statement turns out to be false he could be prosecuted. That itself would put him on guard and make him adhere to the truth as far as possible and would minimise the chances of a false return of service. It is with the same object that the Court is required to examine him on oath where he has not verified the return by an affidavit before the prescribed officer (Nazir), We know of numerous instances where defendants and judgment debtors come to the Court and state that the process-server has not come to their place at all and that the alleged affixure is a myth; and there are several cases where such a contention of the defendant or a judgment debtor has been accepted by the Courts. Such a danger would be minimised if the Court adheres to the pro visions of Order V, Rule 19. If it makes it a point to question the serving Officer as to what he did when he went to the village and what attempts he made to get at the defendant, there is no doubt that the service would be more real and effective than it would be otherwise. We cannot really over-emphasise the importance of this provision. Very often there is room for thinking that the Court does not even look into the return, but simply says "Service sufficient, defendant absent; set ex parte". That defeats the salu tary purpose for which the detailed provisions have been enacted with anxiety by the Legislature."
9. Although it is not now necessary to deal with the further contention of Mr. Prasad that the provisions of Rule 14 of the General Rules and Circular Orders of High Court concerning service of the summons have been wrongly applied by the learned Subordinate Judge, but all the same I will briefly deal with this point. According to Mr. Prasad, Rule 14 (which is now equivalent to Rule 55 of Chapter II, Part I of the High Court Rules) was only in respect of service of summons as required under Rule 54 for suits instituted by or against firms. In other words Rule 55 was governed by Rule 54. Rule 55 reads as under:--
"If the summons or notice, when tendered, is declined by the defendant or his agent, or a male member of his family, besides the proof required as to identity, etc., as stated above, it should be proved that the party was informed that the document tendered was a summons or notice and that he was made acquainted with the nature and contents thereof."
There is nothing in this rule to indicate that it was applicable only to summons in suits instituted by partnership firms and not to other suits. In my opinion, this Is a general provision which is applicable to all types of suits, be it a suit by a partnership firm or be it a suit by Corporations or Railways or any other type of suit. Rule 51 is regarding service of summons under Order V, Rules 14, 15, 17 and 20 of the Code. Rule 52 deals with service of summons in suits by or against Corporations as required under Order XXTX, Rule 2. Rule 53 deals with service of summons in cases by Railway administration Rule 54 deals with service of summons in cases by partnership firms and after all these rules, there is Rule 55 which I have quoted above. It is in general terms without limiting itself to suits of a particular nature. In my opinion, therefore, Mr. Prasad's argument that Rule 55 (i.e., Rule 14 of the High Court Rules before its amendment) was only in respect of suits by or against partnership firms is erroneous. The learned Subordinate Judge was right in applying that Rule for holding the service of summons in the instant case to be invalid.
10. Then there is one further contention by Mr. Prasad that in any event there was notice of the suit to the defendants, including defendant No. 1, by the substituted service effected under Order V, Rule 20 of the Code, which the appellate court had failed to consider.
11. It is true that substituted service is also one of the modes of notice of suit, but when an ex parte decree is sought to be set aside for non-service of summons or notice, Article 123 of the Limitation Act, 1963, says in its explanation that "For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service". Notice or summons in a suit must be duly served, which means in fact served. That is the base on which an ex parte decree can stand.
12. In my opinion, therefore, the order setting aside the decree is not affected by a non-consideration of the substituted service of the summons in the suit.
13. I find that the learned Subordinate Judge has duly considered the oral evidence led by the parties to the application under Order IX, Rule 13 and only after duly considering all the evidence on the record, has held that the applicant got knowledge of the ex parte decree only on the 4th of July, 1969 and not prior to it. It is a valid finding. His further finding that the application under Order IX, Rule 13 of the Code was within time is equally valid. There is no merit in this civil revision application which is, accordingly dismissed with cost. Hearing fee Rs. 32/-.