Delhi District Court
District Judge3 East District vs Smt. Geeta Gupta on 31 August, 2016
IN THE COURT OF MS. NISHA SAXENA, ADDITIONAL
DISTRICT JUDGE3 EAST DISTRICT, KARKARDOOMA
COURTS, DELHI
RCA No.160/16
Shri Bharat Seth
S/o Shri D.S. Seth
R/o D96, Pocket B, Mayur Vihar, PhaseII,
Delhi110091
.... Appellant
vs.
Smt. Geeta Gupta
W/o Shri Ram Tirath Gupta
R/o D1/299, New Kondli, Delhi110096
.... Respondent
Date of filing of appeal : 13.10.2014
Date when order reserved : 29.08.2016
Date of final decision : 31.08.2016
JUDGMENT:
1. The present appeal has been filed by the appellant under Section 96 of CPC against the impugned order dated 15.09.2014 in case CS No.380/2013 titled as Smt. Geeta Vs. Shri Bharat Seth passed by the court of Shri M.P.Singh, Senior Civil Judge/Rent Controller (East), Karkardooma Courts, Delhi, thereby dismissing the application under Order XXXVII Rule 4 read with Order 9 Rule 13 r/w Section 151 CPC for setting aside the exparte judgemnt and decree dated 31.03.2014. The claim of the appellant in appeal is for RCA No. 160/16 1/13 setting aside the impugned order dated 15.09.2014 passed by the Learned Trial Court and acceptance of appeal.
2. Brief facts leading to this appeal are that the respondent / filed a suit for recovery of Rs.2,55,000/ along with interest and costs. The respondent / DH met the appellant on 09.05.2014 and demanded the decretal amount of Rs.2,55,000/ along with interest and costs and told that she had obtained judgement and decree dated 31.03.2014 from the Ld. Trial Court. She threatened the appellant that in caase he failed to pay the decretal amount then she would file execution in the last week of May, 2014. The appellant immediately engaged a lawyer, who made enquiries from the Ld. Trial Court and found out that the exparte judgement and decree was passed vide order dated 31.03.2014. The Counsel for the appellant inspected the file and it transpired that the summons sent by the court through process server were returned back with the report 'premises was found locked'. The court passed an order for affixation. As per the case file, it reflected that the affixation was done on 12.03.2014. The court observed that the appellant was served through affixation. In fact, at that time during the service period the premises was never locked and the mother of the appellant used to live in the premises in question.
3. On the basis of wrong observation that the summons were served upon the appellant, the Hon'ble Court passed impugned judgemnt and decree dated 31.03.2014. In fact, no summons were RCA No. 160/16 2/13 served upon the appellant nor affixation was made because no witness of affixation nor any photographs of affixation were taken by the process server and therefore, it is clear that the report was false and manipulated.
4. The appellant filed an application under Order XXXVII Rule 4 r/w Order 9 Rule 13 and Section 151 CPC for setting the exparte judgemnt and decree dated 31.03.2014.
5. Ld. Trial Court dismissed the application vide order dated 15.09.2014. Aggrieved from the said impugned order, the appellant preferred the present appeal on the following grounds:
(a) that the impugned order is against the facts and law and the same is liable to be setaside.
(b) that the impugned order is based on surmises and conjectures.
(c) that the Ld. Trial Court has wrongly observed that the appellant was served through affixation. In fact, the process server never visited the premises of the appellant at any time. All the reports were manipulated and were prepared with collusion of process server and the respondent
(d) that the Ld. Trial Court failed to take statement of the process server regarding the affixation of the summons in the premises of the appellant
(e) that the Ld. Trial Court has not applied his judicious mind at the time of passing the order dated 15.09.2014 RCA No. 160/16 3/13
(f) that no opportunity was given to the appellant to prove his defence, in fact, the appellant paid the cheque amount in cash to the respondent
6. On behalf of the respondent, no reply has been filed to the appeal.
7. I have heard Ld. Counsel Mr. Rajesh Kumar Aggarwal for the appellant and Ld. Counsel Mr. J.N. Pathak for the respondent and perused the record carefully including the trial court record and rulings.
8. The main plinth of the argument advanced by Ld. Counsel for the appellant is that there was no proper service in the eyes of law and in his application under Order XXXVII Rule 4 read with Order IX Rule 13 CPC, the defendant was not required to show the grounds which could entitle him to defend the suit. Vide order dated 15.09.2014, which is the impugned order, the Ld. Trial Court observed that: "7. This application can be disposed of on a very short ground, even assuming defendant's stand as set out therein to be the gospel truth. Apex Cout in Rajni Kumari Vs. Suresh Kumar Malhotra, AIR 2003 SC 1322 has held that in an application under Order XXXVII Rule 4 CPC, it is not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or RCA No. 160/16 4/13 otherwise, facts which could entitle him to defend the suit. It was further observed that in this respect Order XXXVII Rule 4, CPC is different from Order IX Rule 13, CPC. This legal position has been reiterated in Sangeeta Jewels Pvt. Ltd. & Ors. Vs. Ajay Kumar Jain, (2008) 150 DLT 632.
8. Considered in this backdrop, the instant application is liable to be dismissed at the very threshold on the short premise that apart from assserting that he was not served, defendant has not disclosed any fact, whatsoever, which could entitle him to defend the suit. In short, he has made no averment regarding any triable issue. On this ground alone, the instant application must meet its waterloo.
9. Notwithstanding the fact that the defendant has not made a whisper of any triable issue; his averments qua service of summons are also, to my mind, not correct. I see no reason to discard altogether the report of the process server visavis service of the defendant through the mode of affixation. The defendant in the instant application has given his address which is the same as disclosed in the plaint and where he was served. There is a certain amount of sanctity attached to the report of a public servant. And without there being any material on record, such a report cannot be discarded at the mere self serving ipse dixit of a litigant."
9. Ld. Counsel for the appellant has drawn the attention of the court to Order XXXVII Rule 3 (1) CPC which is as under: "3.Procedure for the appearance of defendant. (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under RCA No. 160/16 5/13 rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address forservice of notices on him."
10. It has been contended that where only summons have been affixed without affixing copy of the plaint and annexures, the service is not in accordance with the provisions of Order XXXVII Rule 3 (1) CPC and this would be sufficient ground to set aside the decree.
11. Per contra it has been submitted by Ld. Counsel for the respondent that the appellant was duly served and the Ld. Trial Court in its order recorded that as per the process, the defendant was served by way of affixation on 12.03.2014 with the summons for appearance. In its order dated 31.03.2014, the trial court observed that 'as per the report of the process server dated 03.12.2014 and 17.12.2014, his premises was found locked. The defendant was thereafter served by way of affixation on 12.03.2014. On behalf of the plaintiff an affidavit was filed stating therein that the defendant is residing at the given address as mentioned in the plaint and on which the summons were sent. Despite lapse of more than 10 days (since being served by way of affixation on 12.03.2014), the defendant did not enter appearance.'
12. Ld. Counsel for the plaintiff has relied upon M/s Chunri Creations v. Smt. Amrit Kaur, 2005 (119) DLT 396 and Ashish RCA No. 160/16 6/13 Goel and Ors v. Prem Chand Gupta and Anr., C.M.(Main) No.1351 of 2008 decided on 08.04.2010. With due deference there is no dispute about the the proposition of law enunciated therein, however, the same are not applicable to the present facts and circumstances as the case of Ashish Goel (supra) does not deal with the matter under Order XXXVII of CPC.
13. Order XXXVII CPC is a special provision dealing with the cases wherein summary procedure is adopted and the procedures adopted in ordinary suit is not applicable to the cases falling under Order XXXVII CPC. Service by way of affixation of notice only is not a proper notice under XXXVII CPC and is a defective notice and as per requirement of law a copy of the plaint along with an annexures should also have been affixed. I place reliance upon 167 (2010) DLT 161 Media Coverage Pvt. Ltd. v. Harish Nagewala and Ors., wherein the court observed that:
9. It is submitted by counsel for the applicants that in a case where the service on defendant itself was not a valid service and the defendant had not received the copy of the plaint, the defendant would not be in a position to disclose the defence and make a composite application.
10. In the present case, the notice served upon the defendants by way of publication was not a notice of a suit under Order 37, C. P. C. Even if, it was to be served by publication, it could be served by publishing the contents of the suit so that the defendant put appearance in the Court and thereafter summons for judgments are served upon the defendants. In the present case, the service was effected by RCA No. 160/16 7/13 publishing an ordinary notice in the news paper and not a notice under Order 37, CPC by publishing the plaint and this was not a proper notice and was a defective notice.
11. I, therefore, consider that the notice through publication, which was treated as proper service by the Court was not a proper service and if at all it was a service it was a defective service and the applications under Order 9 Rule 13, CPC are therefore liable to be allowed.
14. I am also supported by 114 (2004) DLT 264 Hans Raj v. Lakhi Ram, wherein the court observed that: "In a suit brought under Order 37, CPC, it is all the more important for the plaintiff to show that the fact that the suit was filed under summary procedure was specifically brought to the notice of the defendant because in these cases he has to put an appearance within a period of ten days. There is nothing on record to show that either the summons were tendered to the wife of the petitioner or she was told that defendant has to appear before Court within a period of ten days. A perusal of the order sheets reveal that on several dates either the "Process fee was not filed by the plaintiff or annexures were not furnished as a result of which summons could not be issued. As regards substituted service it is clear from the perusal of copy of the newspaper "Statesman" dated 21.10.1995 that copy of the annexures namely the alleged loan agreement dated 24.03.1994 were not published in the newspaper. While dealing with the service of summons in the suit under Order 37 CPC, this Court in the case of Punjab and Sind Bank v. Ramji Das Khanna and Anothr, AIR 1984 Delhi 175 took the view that where a process server has affixed only the copy of summons without affixing the copy of plaint and annexures thereto and the Registrar of the Court has not held any inquiry to determine whether service under the circumstances was sufficient, the service of summons is RCA No. 160/16 8/13 insufficient and it is a sufficient circumstance to set aside a decree. The Court took note of relevant rules of the CPC and the High Court rules in this regard. Order 37, CPC specifically provides that in a suit under Order 37, CPC, the plaintiff shall together with the summons under Rule 2, serve the defendant with a copy of the plaint and annexure thereto. Thus where only summons have been affixed without affixing copy of the plaint and annexures thereto, the service is not in accordance with the provisions of Order 37 Rule 3(1) CPC and this would be a sufficient ground to set aside the decree. The same view is taken by another bench of this court in the case of New Bank of India vs M/s Master Steel Marketing Co. 59 (1995) DLT 521 = 1995 III AD (Delhi) 957. It was a case of the substituted service. It was held that where only copy of summons was published without publishing copy of the plaint and annexures thereto, the service was not in accordance with law. As against this, learned Counsel for the respondent has relied upon the decision in the case of M/s EMESS Advertising Service v. The Hindustan Times Ltd., AIR 1998 Delhi 14. It was an ordinary suit for recovery and not under the provisions of Order 37, CPC. In that case publication was held to be sufficient. It is clearly distinguishable as it was rendered in the context of an ordinary suit in which case publication of summons is enough. In the case of an ordinary suit there is no need to affix copy of the plaint and the annexures thereto but in a suit brought under Order 37, CPC it is mandatory that plaintiff shall together with summons serve on the defendant a copy of the plaint and annexures thereto."
15. From the proposition enunciated in the above judgment it is clear that the service upon the appellant by way of affixation of notice only is a defective and invalid service and since the service upon the appellant was not proper and in accordance with Order XXXVII Rule 3 (1) CPC, the impugned order is liable to be set RCA No. 160/16 9/13 aside.
16. The second limb of the argument advanced by Ld.Counsel for the appellant is that in his application under Order XXXVII Rule 4 read with Order IX Rule 13 CPC, he was not required to raise any triable issue.
17. Ld. Trial Court in the impugned order has referred to the case of Rajni Kumari v. Suresh Kumar Malhotra, AIR 2003 SC 1322 and has held that the defendant is not only required to show special circumstances which prevented him from appearing or applying for leave to defend but also has to show by affidavit or otherwise the facts which would entitle him to defend the suit. However, the Ld. Trial Court seems to have misinterpreted the judgment. The occasion for raising the triable issue would arise only when the exparte order is set aside and the parties are relegated to the position where the defendant could move an application for leave to defend. I am fortified in my opinion by 136 (2007) DLT 573(DB) Manjari v. Ranjit Singh. In the judgment it has been held as under:
4. The Trial Court has, as noticed above, declined to invoke its powers on the ground that the defendant appellant had not raised any triable issue. It has, in support of that line of reasoning, relied upon a decision of the Supreme Court in Rajni v. Suresh, II (2003) SLT 835=AIR 2003 SC 1322. We have gone through the said decision but find it difficult to hold that the same interprets the provision of Order 37 Rule 4 in the manner understood by the Trial Court.
RCA No. 160/16 10/13That was a case in which the defendant was served by registered A. D. whereafter an application under Order 37 Rule 4 of the CPC was filed seeking an order setting aside the ex parte decree. This application was dismissed by the Trial Court on the ground that the same did not disclose any special circumstance to warrant an order under Rule 4 of Order 37 of CPC. The High Court before whom the said order was challenged also agreed with the Trial Court and dismissed the revision petition filed against the said order. In a further appeal before the Supreme Court, Their Lordships held that non service of summons will undoubtedly be a special circumstance within the meaning of Rule 4 of Order 37 of CPC. Having said so, Their Lordships also observed that if in an application, more than one relief could be granted by the Court, all such reliefs must be claimed by the party concerned. The Court declared that it was impermissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. The Court observed:
" Where on an application, more than one among the specified reliefs may be granted by the Court all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend this suit in the prescribed period, the Court is empowered to grant leave to defendant RCA No. 160/16 11/13 to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 Order 37 is different from Rule 13 of Order 9".
5. It is evidence from the above that the situation in which the law expects the party concerned to seek all the reliefs available to it have been limited to only two classes of cases viz. One where the defendant did not appear in response to summons and the period of limitation for doing so expired and the second where having appeared, the defendant did not pray for any leave to defend the suit within the prescribed period. In either of these cases, the Court could grant leave to the defendant to appear in response to the summons and to defend the suit in the same application which ought to raise triable issues to justify grant of leave. That is not, however, the position before us. We are dealing with a case where the service of summons upon the defendant was itself defective. In such a case, the Court passing an ex parte decree can and is indeed bound by law and equity both to set aside the decree passed by it. It would be unnecessary in any such case for the defendant to go a step further and not only establish that he had not been served with summons but also that he had a triable issue to raise in the suit. The occasion for raising a triable issue would arise only if the ex parte decree is first set aside and the defendant relegated back to the position where he can make an application for grant of leave to defend. It would be premature to require the defendant to show whether nor not he has a triable issue to raise at a RCA No. 160/16 12/13 stage at which he was yet to get rid of the ex parte decree. That is precisely what the Trial Court appears to have done in the present case. Instead of invoking its powers under Order 37 Rule 4 of the CPC and setting aside the exparte decree, the Court appears to have prematurely demanded the existence of triable issues. That approach was not in our view legally correct and has resulted in miscarriage of justice.
18. From the law & principles enunciated above, it is clear that Ld. Trial Court was also not justified in holding that the appellant was also required to show by affidavit or otherwise, facts which could entitle him to defend the suit. It was a premature stage to require the appellant to show that he had a triable issue to raise till the exparte decree was not set aside.
19. In view of the foregoing discussion, I am of the considered opinion that the Ld. Trial Court has erred in appreciating the provisions of Order XXXVII CPC and misinterpreted the legal position and accordingly, appeal stands allowed setting aside the impugned order dated 15.09.2014. Parties shall bear their own costs. Copy of the judgment be sent to Ld. Trial Court along with the record with the direction to proceed as per law. Parties are directed to appear before Ld. Trial Court on 13.10.2016. File of appeal be consigned to record room.
Announced in open court (NISHA SAXENA)
Dated:31.08.2016 ADDL. DISTRICT JUDGE03(EAST)
KARKARDOOMA COURTS: DELHI.
RCA No. 160/16 13/13