Gopiram vs Smt. Savitri Devi And Another

The present civil revision under Section 115 of CPC has been preferred against the order dated 19/8/2016 passed by the 10th Additional District

Judge, Gwalior in Civil Appeal No. 1/2016; whereby, the order dated 21/11/2015, passed by 3rd Civil Judge, Class-I, Gwalior; whereby, the application

preferred by the petitioner under Order IX Rule 13 CPC has been rejected, has been affirmed.

Precisely stated facts of the case as per revision memo are that petitioner has purchased the suit property from one Khachhuram admeasuring 1950

sq. ft. for consideration of Rs. 1,05,000/-. Khachchuram was survived by two daughters namely Savitri and Narayani. Sister of Khacchuram Smt.

Kunti raised the dispute over the suit property, therefore, the petitioner had to file the suit against Kunti and her son Kailash for declaration and

permanent injunction. Document of receipt which was executed by Kachhuram was also submitted and injunction decree was passed against Kunti

and Kailash. In that civil suit, receipt dated 12/1/1989 was declared to be inadmissible in evidence and thereafter when the appeal was preferred,

appellate Court vide judgment and decree dated 22/12/2010 held the possession of the petitioner as permissive possession. This judgment and decree

attained finality qua Kunti and her son Kailash. Thereafter, daughters of Khachchuram, Smt. Savitri and Narayani, filed a suit stating that petitioner is

tenant in suit property and he be evicted from the suit premises. The suit was filed on 2nd February, 2012 in which summons were issued for service

of respondents by making the same returnable by 10/2/12. On 9/2/2012, as per the bailiff report, notice was served to the defendants and defendants

refused to receive the notice. On 14/2/2012, again notice was issued by making the same returnable on 22/2/2012. On 17/2/2012, again Bailiff made a

report that as defendants refused to receive the notice, therefore, notice was affixed on the door of defendants' house. On 22/2/2012, the trial Court

on the basis of report made by the Bailiff, proceeded ex-parte against the present petitioner and on 11/4/2012, ex parte judgment and decree was

passed by the trial Court.

On 29/7/2012, it appears that in pursuance to judgment and decree passed by trial court on 11/4/2012, execution proceedings were filed by the

decree holder and on 29/7/2012 itself plaintiffs took the possession of the defendant (present petitioner). Thereafter, it appear that petitioner filed an

application on 13/8/2012 under Order IX Rule 13 CPC for setting aside the ex parte judgment and decree, in which the petitioner was cross-examined

by the plaintiff and in rebuttal, respondents have sworn affidavit under Order XVIII Rule 4 CPC but did not appear before the trial Court.

On 21/11/2015, trial Court passed the order, dismissing the application, which was challenged by the petitioner in the appellate Court but the

appellate Court vide judgment dated 19/8/2016, dismissed the appeal. Therefore, petitioner is before this court under Section 115 of CPC.

Learned counsel for the petitioner vehemently argued on the basis of provisions as contained in Order V Rule 17, 18 and 19 of CPC read with Rule

56 and 71 of the MP Civil Court Rules, 1961 and submits that appendix B (Notice No. 11) as contained in schedule in respect of Order V Rule 18

CPC enjoins upon the Court and the Bailiff certain duties in respect of assuring the Court about the proper service. He submits that trial Court ought

to have made an enquiry as per Order V Rule 17, 18 and 19 CPC and if any doubt existed regarding fact about defendant refusing to accept the

service or cannot be found over the address, then under Rule 17, procedure has been prescribed. The Serving Officer shall affix a copy of summon on

the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for

gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so

affixed the copy, the circumstances under which he did so, and the name and address of the person, if any, by whom the house was identified and in

whose presence the copy was affixed. Here no such endorsement was made as per Rule 17 and 18 under Order V of CPC and therefore, trial Court

should have examined the Serving Officer under Rule 19 of Order V of CPC. In absence of any examination over Serving Officer / Bailiff, trial Court

erred in not coming to the conclusion that proper service has been effected and therefore, consequentially erred in proceeding ex parte against the

present petitioner.

It is further submitted that proceedings of trial Court dated 22/2/2012, the date on which, the notice was to be returned back no contemplation is

seen that compliance of Order V Rule 17 and 19 as well as Rule 56 and 71 of the Civil Court Rules have been complied with. Through the various

dates and events, counsel for the petitioner asserted that the service affected over the petitioner was not proper and therefore, trial Court erred in

proceeding ex parte against the petitioner. It was the duty of the plaintiff to prove that summons have been duly served over the defendant and trial

Court wrongly shifted the burden over the present petitioner in proceedings under Order IX Rule 13 CPC, whereas, it was incumbent upon the

plaintiffs to prove the service. He relied upon the decisions of Hon'ble Apex Court as well as this Court and Chhattisgarh High Court, in the cases viz.,

Sushil kumar Sabharwal Vs. Gurpreet Singh, (2002) 5 SCC 377, Brijendra Singh Bhadauria Vs. Usha Singh alias Deepa, LAWS (MPH) 2011 9 135,

Charanlal Patel Vs. Kavita Jain, AIR 1998 MP 16, Kunja Vs. Lalaram and Ors., 1987 MPLJ 746, Ram Kripal Vs. Veerbhadra and Ors., 2013 (1)

MPLJ 683, Krishan Vs. Smt. Sumitra, 2003 (II) MPWN 9, Mohammad Yakub Niyaji Vs. Shahi Zama Masjid Gwalior Intazamia Committee, 2011 (3)

MPLJ 444 and Ghasiram (dead) through LRs and Ors., Vs. Shashi Bhushan and Ors., 2017 Legal Eagle 1 and submits that it is the duty of the

plaintiffs to discharge the burden that summons have been served and if the process server did not file an affidavit and has not been examined in the

Court and identification of the house is not proved, independent witness details failed to be recorded in the summons and Court failed to declare that

summons are properly served then ex parte judgment and decree deserves to be set aside. Here in the present case, mandatory procedure contained

under the law has not been followed, therefore, defendant cannot be proceeded ex parte.

On the other hand, learned counsel for the respondents opposed the prayer made by the petitioner and submits that evidence of petitioner

(defendant) categorically reveals that he had no enmity with the Bailiff, therefore, no question of mischief comes into play. He categorically admitted

the fact that his address on which the summons were issued was his address and he categorically admits that he lives over the said address and he

was always available in the home. Therefore, once, the defendant has accepted this fact, therefore, Court below has rightly found the case of the

service of summons as proved. When two Courts below have passed the order appreciating the evidence then no case for interference is made out.

He relied upon the decision of this Court in the matter of Parimal Vs. Veena alias Bharti, 2011 (3) MPLJ 241 and submits that ex parte judgment and

decree against the defendant can only be set aside when summons have not been duly served or he was prevented by sufficient cause from appearing

when the suit was called on for hearing. Mere irregularity in the service of summons or in a case where the defendant had notice / knowledge about

the date and sufficient time to appear in the Court then in that condition, no indulgence can be shown. He submits that petitioner had to discharge the

onus that he was not properly served. He prayed for dismissal of the revision petition.

Heard learned counsel for the parties at length and perused the record.

The case in hand is in respect of service of summons to the defendant (present petitioner). The contention of the petitioner mainly revolves around

the fact that he never received the summons sent by the trial Court and therefore, restrained to present his case before the trial Court. Although scope

of revision in such matters is very limited, at the same time, it is to be seen that whether the orders passed by the Courts below further the cause of

justice or not.

Here in the present case, petitioner earlier filed a civil suit before III Additional District Judge to the Court of First Additional District Judge

against the Bekunthi Bai and Kailash (Lrs. of Kachhuram) and the said suit was partially decreed by the judgment and decree dated 22/12/2010 and

decree of permanent injunction was granted. It was decreed that present petitioner cannot be evicted from the suit premises without due process of

law. Till decree was operating in favour of the present petitioners till then no action for eviction could have been sustained therefore, present litigation

assumes importance wherein instead of son and daughter of Kachhuram other heirs of plaintiffs came into picture who were allegedly sisters of

Kachhuram and they asserted their rights qua disputed property and sought eviction of the present petitioner from the disputed property.

In normal course of procedure if the petitioner would have received the notice as defendant then he could have contested the case of eviction on

the grounds available to him and might have resorted to the judgment and decree of permanent injunction passed in favour of him but he could not get

the opportunity. Due to chequred history shared by the petitioner with family members of Kachhuram in respect of the suit property, a natural

presumption goes in favour of the petitioner and against the respondents, whether the service of summons or alleged refusal to accept notice by the

present petitioner was a device to strip off the petitioner from the benefits derived by him by getting decree of permanent injunction in his favour.

Submissions and counter submissions on the basis of testimony of witness and documentary evidence and the facts, may emerge or may not about

the effective service of the petitioner but said discussion appears to be missing in the judgments passed by the Court below. Fact of earlier judgment

and decree dated 22/12/2010 has material bearing in the present controversy, therefore, fact situation of the case persuaded this Court to give another

chance to the petitioner to lead additional evidence or to produce more documents in support of his submissions.

Another aspect worth consideration in the controversy is non-consideration of part-C (Method of Proof of Service) and Chapter-III (Service of

Process and Work in Nazarat) under the Rules under M.P. Civil Courts Act, 1958 (hereinafter referred as “Act of 1958â€). Rule 51 to 72 of the

Act of 1958 are worth consideration in this regard. It provides instructions for the guidance of Process Server and Returning Officer. Discussion of

the Courts below lacks discussion on the basis of rules as referred above as well as import of Order V Rule 17 and 18 etc.

Procedure are handmaid to justice and procedure of service is part of administration of justice. Service of summons should be so transparent that it

must facilitate litigation on Merits rather on Technical pretext. Jurisprudentially, no dichotomy exists between law and justice and therefore, law should

reach to justice.

Considering the fact situation as well as the guidance given by the Apex Court in the catena of decisions including the judgment rendered by the

Hon'ble Apex Court in the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh And Ors., 2002 (5) SCC 377 wherein it has been clarified that any

default or casual approach on the part of the Court may result in depriving a person of his valuable right to participate in the hearing and may result in

a defendant suffering an ex-parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his.

Fact situation of the case persuaded this Court to relegate the matter back to the trial Court for adjudication of the controversy afresh so that

rights of the parties can be crystallized in more logical and legal manner.

Resultantly, the impugned order dated 21/11/2015, passed by 3rd Civil Judge, Class-I, Gwalior in M.J.C. No.5/2014 as well as order dated

19/8/2016 passed by the 10th Additional District Judge,Gwalior in Misc. Civil Appeal No. 1/2016 are hereby set aside. Matter is remanded back to the

trial Court for adjudication of the controversy afresh.

Parties would be at liberty to lead additional evidence, if required and after the evidence, the trial Court shall pass the order as per law considering

the testimony of witness holistically for advancement of cause of justice. Parties are directed to appear before the trial Court on 28th June, 2018 and

take necessary guidance for further proceedings.

Revision stands allowed and disposed of accordingly.