Madhya Pradesh High Court
Smt. Sunita vs Smt. Shakila Bi And 4 Ors. on 30 July, 2018
M.A. Nos.2502 of 2011 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
M.A. No.2502/2011
Smt Sunita v/s Smt. Shakila Bi & Others
Indore, dated 30.07.2018
Shri Pankaj Soni, learned counsel for the petitioner.
Shri P.K. Jain, learned counsel for respondents No.3
and 4.
The present appeal has been filed under Order 42 Rule 1 of the Code of Civil Procedure (hereinafter referred as C.P.C.) against the judgment dated 19.07.2011 passed by the First Additional Member, MACT, Dewas, in Miscellaneous Case No.01/2011. By the aforesaid judgment, the application preferred under Order 9 Rule 13 of the C.P.C. has been rejected.
The facts of the case reveal that a claim was preferred i.e. Claim Case No.184/2010 by respondent No.1/Smt. Shakila Bi before MACT, Dewas and the same was decided on 25.02.2011. Notices were issued in the matter and on 26.10.2010, the present appellant was required to appear before the Tribunal, however, on 26.10.2010, the Presiding Officer was on leave and date was given by the reader. Thereafter, no fresh notice was issued to the present appellant and on next day i.e. 27.10.2010, the Tribunal proceeded ex parte.
Learned counsel for the petitioner has placed reliance upon a judgment delivered by the Division Bench of this Court in the case of Laxmi Bai v/s Keshrimal Jain 1995 MPLJ 105.
In similar circumstances, the Division Bench of this Court has held the order proceeding ex parte as illegal. Paragraph-8 of the aforesaid, judgment reads as under:-
"8. In the case in hand, we find that there was no M.A. Nos.2502 of 2011 2 service of the summons. True, there is a presumption under Section 27 of the General Clauses Act, 1897, that when a document is sent under registered cover and on that, there is an endorsement of refusal by addressee to accept, the notice must be presumed to have been served and service shall be deemed to be a valid service unless it is rebutted by legal evidence. See, Jagdish Singh v. Natthu Singh (AIR 1992SC 1604 : 1992 All LJ 620 : 1992 AIR SCW 174. But, from the closed envelope which was opened in the presence of the parties, it is clear that no copy of petition/plaint was sent to the appellant along with the summons of the petition. Order V, Rule 2, CPC, in mandatory terms provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Therefore, the law is that along with the summons, a copy of the plaint should be served, as it is very much essential because the purpose of service of a copy of the plaint or, if so permitted, of a concise statement thereof, is to bring home to the defendant, the knowledge of a particular suit having been instituted against him so that the defendant may know that the claim brought about the plaintiff against him and make up the mind against the claim. This is the reason why the law-makers have made Rule 2 of Order V, CPC mandatory by use of the word "shall". Accordingly, if the summons are not accompanied by a copy of the plaint, it cannot be said that there is due or valid service on the defendant and if there is no valid service, a decree on such defendant has to be set aside. See, Chhutbai v. Madanlal (AIR 1989 MP 280), Laxminarayan S. Sharma v. Ramesh-war R. Khandaewal (AIR 1990 MP 155); Electric Construction and Equipment Co. Ltd. (M/s.) v. Permali Wallace Ltd., (1991 JLJ 45) Daulatram v. Ishwari Prasad (1992 (I) MPJR SN 88: 1993 (I) MPWN 7). Besides, after the receipt of the envelope with an endorsement purporting to have been made by a postal employee to the effect that the defendant has refused to take delivery of the postal article, when was tendered to the defendant, the Court, under Order V, Sub-rule (2) of Rule 19-A, CPC, did not declare that the summons had been duly served on the defendant, that infirmity is there on the face of the record. There is yet another reason to hold that the appellant/defendant was not duly served, in the summons, the. date of appearance was 21-7-1981, on that date, the Presiding Officer was on leave. Therefore, M.A. Nos.2502 of 2011 3 the next date fixed by the Reader of the Court, was not a date of hearing; hence, the Court ought to have issued a fresh notice to the defendant, but instead of that, the Court illegally proceeded ex parte on the assumption that the defendant was absent on 21-7-1981 and is also absent on the date fixed by the Reader. In such a situation, when a date given in the notice of summons is declared holiday or the Presiding Officer is on leave, unless another date is notified by issue of a fresh summons or by exhibiting a date on the Notice Board, a Court cannot proceed ex parte, till the next date is notified a defendant is not bound to attend and may wait for another notice. See, Raghurajsingh v. Kalyanaprasad (1964 JLJ SN 78) Kranti Kumar Jha v. Dr. J.B. Shrivastava (1978-1 MPWN 443); Mohanlal Brijlal v. Manga 1986 CCLJ N 39), Sushila Bai v. Ram Nihore (1991 MPLJ 229). Therefore, for the above reasons, the Court was having no jurisdiction to proceed ex parte; the error is apparent and the decree so passed is illegal and is liable to be set aside. Even for argument's sake the above grounds relate to invalid service making out a case amounting to sufficient cause, and ought to have been taken in a proceeding under O. IX, Rule 12, CPC, and could not be seen in an appeal under Section 28 of the Act. In that case too, it is not the law that if a defendant fails to appear in response to the notice of summons of the Court, a Court is bound to pass a decree at once or on the evidence adduced by the plaintiff. In an ex parte case also, a plaintiff has to prove his case by producing legal evidence for passing a decree as it is settled that a Court must act on admissible and legal evidence. While considering the evidence, the Court will not be bound to accept the statement of witnesses only because they have not been effectively cross- examined or evidence in rebuttal has not been adduced. A Judge is not a computer. In Civil cases, while assessing the value attached to oral evidence, a Judge has to test the evidence placed before him on the basis of probabilities. See, Chaturbhuj Pande v. Collector Raigarh (AIR 1969 SC 255 : 1969 All LJ 159; Modi P.R. v. Collector, Durg (1975 JLJ 595)."
In light of the aforesaid judgment, the application preferred by the present appellant under Order 9 Rule 13 of the C.P.C. should have been allowed by the Claims Tribunal.
Resultantly, the impugned judgment dated 19.07.2011 M.A. Nos.2502 of 2011 4 is hereby set aside and the application preferred under Order 9 Rule 13 of the C.P.C. stands allowed, meaning thereby, the award passed by the Claims Tribunal dated 25.02.2011 is also set aside and the parties will appear before the Claims Tribunal on 27th August 2018. The Claims Tribunal shall issue fresh notice to all parties and shall proceed ahead in accordance with law.
With the aforesaid, the present appeal stands allowed. Certified copy as per rules.
(S.C. Sharma) Judge Ravi Digitally signed by Ravi Prakash Date: 2018.07.31 18:53:54 +05'30'