Punjab-Haryana High Court
Rattan Singh vs Sardool Singh on 23 December, 1999
Equivalent citations: (2000)124PLR849
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Sardool Singh (Plaintiff) filed suit for possession by way of specific performance against Rattan Singh (defendant) qua land measuring 14 Kanals 12 Marias on 5.1.87 which was decreed ex parte vide order dated 10.12.1987 by Sub Judge, 1st Class, Sirsa.
2. Rattan Singh (defendant) filed an application on 14.6.1988 for setting aside ex parte decree on the allegations that summons were never served upon him. It was on account of non-service of summons upon him that he could not appear in Court. He had no notice of the date of hearing of the case and was thus prevented from appearing in Court. He had no knowledge of the ex parte decree. He came to know of the ex parte decree on 3.6.88.
3. Sardool Singh (plaintiff) contested this application urging that there was proper service on him through summons. Munadi was also effected in the village. Still he did not appear and he has proceeded against ex parte. He was in the knowledge of the date fixed for his appearance. He intentionally refused to accept service through registered AD. It was denied that he came to know of the ex parte decree on 3.6.1988. He had knowledge of the date of hearing of suit when he refused to accept service and as such this application was time barred.
4. On the pleadings of the parties, the following issues were framed by the trial Court:-
1. Whether the ex parte judgment and decree dated 10.12.1987 is liable to be set aside as alleged? OPP
2. Whether the application is within time as alleged? OPP
3. Relief.
5. Sub Judge, 1st Class, Sirsa dismissed this application vide order dated 13.3.1991 in view of his findings that Rattan Singh had been duly served and despite due service through munadi, he failed to appear before the Court. Apart from service through munadi, there had been service through affixation and registered envelope was also sent to him which was received back with the report "refused" and prior to the filing of the suit, plaintiff had served upon him legal notice through his counsel but the defendant refused to accept the legal notice and the registered letter alongwith AD which was received back with the report "refused". It was also found that the application was time barred.
6. Aggrieved from this order, defendant went in appeal, which was dismissed by Additional District Judge, Sirsa vide order dated 12.12.1995.
7. Aggrieved from this order, Rattan Singh defendant has knocked the door of this Court through this Revision.
8. Sardul Singh instituted suit for possession through specific performance on 5.1.1987. On 5.1.1987, the suit was assigned to Shri G.L. Goyal, Sub Judge, 1st Class, Sirsa for disposal. Plaintiff/counsel was directed to appear there on 7.1.1987. On 7.1.1987, the following order was passed:-
"Heard. Suit be registered. The defendant is restrained from alienating the suit land in any manner, till further orde Rs. Notice of the stay application as well as of the main suit be given to the defendant for 7.2.1987." On 7.2.1987, the following order was passed:-
" Defendant refused to accept service on summons. Now he be, called through munadi and Munadi effected. Case called but none is present on behalf of the defendant. Be awaited after lunch."
After lunch, the following order was passed:-
"Case has been called for the second time, Neither the defendant, nor his counsel is present. The defendant was served for today through Munadi. Munadi has been effected. Called many times. It is 2.10 P.M. The defendant is proceeded ex parte. Now the case stands adjourned to 16.7.1987 for ex parte evidence of the plaintiff."
9. Learned counsel for the petitioner submitted that there is no order by the court that the defendant be served through registered post acknowledgement due as well. On the records of the suit file, there is one summons issued for service upon the defendant for 7.2.1987. Report of the process server is that he went to village Harni Khurd for service upon Rattan Singh. Rattan Singh was not available at his house. He came to know that he was away to Hisar. This report is not attested by any witness. There is no other summons on the suit file showing that any efforts were made for effecting service upon the defendant. After the Court had received back this summons with the report that Rattan Singh was away to Hisar, the Court passed an order on 7.2.1987 that Rattan Singh be served through munadi. Court mistook the report as conveying that he had refused service while he had been reported to be away to Hisar and on this mistaken impression, the Court ordered that he be served through munadi. Order 5 Rule 12 of the Civil Procedure Code says 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." Order 5 Rule 15 of C.P.C. says "Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him." Order 5 Rule 19-A C.P.C. says that "The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain:
Provided that nothing in this sub-rule-shall require the Court to issue a summons for service by registered post, where in the circumstances of the case the Court considers it unnecessary."
10. In this case, the Court resorted to substituted service without exhausting the other modes of service as given in Order 5 of the Code of Civil Procedure. Order 5 Rule 19-A, C.P.C. was introduced by Act No.4 of 1976 with effect from 1.2.1977 in the Code of Civil Procedure with a view that process server and the postman acted as check on each other. In Smt. Sunanda Chaudhri v. Ashok Kumar Chaudhuri, 1996 A.I.H.C. 5160, a Division Bench of Gauhati High Court held that "Provisions requiring simultaneous service i.e. by regd. post and by ordinary process are mandatory. Summons returned unserved. Such service has to be supported by an affidavit. The Court "shall" examine service officer on Oath. Use of word "shall" makes the said provision mandatory. Ex parte decree passed without service of summons in accordance with provisions of 0.5, is vitiated." In Karnail Singh v. Dina Nath and Ors., 1985(2) R.L.R. 539 it was held by a learned Single Judge of this Court that "If the defendant refuses to sign acknowledgement of service of summons, the serving officer has to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides. Summons must be accompanied by the copy of the plaint. Mere presentation of summons without copy cannot be considered to be due service. In case the defendant, against whom ex parte decree is passed, comes to Court praying for setting aside the ex parte decree on the ground that he was not served, onus would be in the negative form on him and his statement on oath denying service would shift the onus on the plaintiff to dis-prove his statement." In Kesar Singh v. Tara Chand and Anr., (1971)73 P.L.R. 198 a learned Single Judge of this Court held that "Order 5 Rule 2 of the Code of Civil Procedure says that every summons shall be accompanied by a copy of the plaint, or if so permitted by a concise statement. Where the defendant refuses to accept service, the summons alongwith the copy of the plaint or the concise statement, as the case may be, should be affixed on the outer door of his house. The language employed in Para 3(v) of the Chapter VIII-B of the High court Rules and Orders Volume IV makes it clear that the person concerned has to be informed of the nature and the contents of the case against him. Where it has not been established that the copy of the ejectment application was also sent alongwith the summons to the tenant and the same was affixed on the outer door of his residence, the ex parte order of ejectment passed against him has to be set aside." In this case, there had been no effort at all to serve the defendant personally with the summons alongwith copy of plaint or concise statement of the case which he was to move. Report of the process-server made by him on the summons issued for 7.2.1987 is not attested by any witness. It was highly unjust and inequitable on the part of the Court to have ordered service through munadi acting merely on this report, which was not a report of refusal of service by the defendant, rather he was reported to have been away to Hisar. Summons should have been issued for personal service upon him for the next date. It was negating justice when service through munadi was resorted to when no effect at all had been made to approach him with the summons for personal service. Provisions of Order 5 Rule 19-A of Code of Civil Procedure, which are mandatory, should have been brought into play. These were not brought into play. If these had been brought into play, no wonder, either the summons had reached him for service or the registered post had reached him for service or both had reached him for service.
11. Learned counsel for the respondent-plaintiff submitted that defendant-petitioner was aware of the pendency of the suit against him prior to the institution of the suit. Notice dated 16.12.1986 was sent to him through registered post AD calling upon him to be present in the office of Sub Registrar on 29.12.1986 and execute sale deed in his favour per the agreement dated 13.6.1986 on receipt of balance amount of Rs. 3,000/- and if he failed to do so, he would be forced to file suit for possession through specific performance in the Court at Sirsa. It was submitted that if he was aware about the pendency of this suit, exparte decree passed against him should not be set aside even if there is an irregularity in the service of summons upon him. In support of this submission, he drew my attention to the provisions of proviso to order 9 Rule 13 CPC, which says "no Court shall set aside a decree passed ex parte merely on the ground that there has been aft irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim." To my mind, this proviso will come into play where the defendant attacks service upon him saying that only summons were served upon him but without copy of plaint In this situation, if it can be shown that he was aware about the pendency of the suit by some other means, he cannot be heard to contend that he was served only with summons but without copy of plaint because he was aware about the subject matter of the suit through other means. In this case, even the notice alleged to have been sent to him for service alongwith registered AD, was not served upon him. he is said to have refused to accept that notice. If notice sent to him through registered post acknowledgment due had been accepted by him, he could have been charged with the knowledge of pendency of the suit. Suit was filed on 5.1.87. As per the terms of the agreement, the suit could have been filed on or before 14.12.89. In the notice also, plaintiff did not set out any probable date till when he would be instituting suit. If some date had been set out by him in that notice till when he would be instituting suit, then also he could be charged with the knowledge of pendency of the suit. Proviso to Order 9 Rule 13 CPC can be brought into play only in case there is irregularity in the service of summons not that where there is no service at all. In this case, no postman was produced by the respondent to show that he reached the defendant with notice alongwith registered AD and he refused to accept it and he recorded the endorsement refused on the registered envelope. Assuming that the report of postman should be presumed to be correct in viewof the provisions of clause F of Section 114 of the Evidence Act that presumption is rebuttable. In this case, defendant has said that no postman ever contacted him with the registered AD and notice.
12. For the reasons given above, I am of the view that the courts below had gone completely off the track marked by the cannons of judicial prudence when they refused to set aside the exparte decree. Exparte decree was passed on 10.12.87 and application for setting aside exparte decree was made on 14.6.88. Application for setting aside exparte decree could be made either within 30 days of the date of decree or within 30 days when he came to know of the exparte decree. Defendant has stated that he came to know of the exparte decree on 3.6.88. In Telu Ram and Ors. v. Chanan Singh and Ors., (1963)65 P.L.R. 804, it was held that "where all the joint mortgagees are not served with the notice of the application for redemption of the mortgage, no valid order of redemption can be passed by the collector. In such a case it is not necessary for the mortgagees, to file a suit to get the void order set aside. A void order has no existence in law and can always be ignored. In a suit to recover possession on the ground that there was no order of redemption, the plaintiffs are entitled to a decree and the question of possession does arise." When the exparte decree was passed without there being any service at all upon the defendant, the exparte decree did not have any existence in the eye of law. Defendant has stated that he came to know of the exparte decree on 3.6.88 and Sandool Singh has not stated that he made him aware of this decree soon after it was passed.
13. For the reasons given above, this revision succeeds and is accepted as prayed for. Orders of both the courts below are set aside and exparte judgment and decree are set aside on payment of Rs. 5,000/- as costs, no order as to costs.