Jagjit Khorana vs Raj Kumar

Permod Kohli, J.—This revision is directed against the judgment and order dated 08112001 passed by the learned Ilnd Additional District

Judge, Jammu in File No. 46A Appeal, rejecting the appeal of the present petitioner against the judgment and order dated 16012001 passed by

learned SubRegistrar, Munsiff, Jammu, refusing to setaside the exparte decree passed against the petitioner.

Briefly stating the facts as emerge from the record, are that;

The petitioner was a tenant of Smt. Krishana Kumari Widow of late Sh. Amar Nath. Satya Devi, Raj Kumari and Kamla Devi daughters of late

Sh. Amar Nath in the premises comprising of one shop and building constructed on four shops on the first floor situate at Mohalla Partap Garh,

Jammu. There appears to be a dispute of nonpayment of rent for which the petitioner claims to have deposited the rent before the Rent Controller.

However, these facts are not relevant for the disposal of present revision petition.

In so far as the controversy in the present revision is concerned, it released to setting aside of exparte decree passed against the petitioner on 18

111996 in an eviction suit filed by the respondent in the Court of learned Sub • Registrar Munr'ff, Jammu. The suit was instituted on 2nd of

September, 1995 which resulted in passing of the exparte decree on 18111996. On acquiring the knowledge of the exparte decree the present

petitioner preferred an application under Order9 Rule 13 CPC for setting aside the exparte decree on 22081997. This application came to be

registered as file No. 149/Misc. The trial Court after inviting objections from the respondent, allowing the parties to lead evidence and bearing,

rejected the application for setting of the exparte decree vide its order date 16012001. An appeal preferred there from before the learned Ilnd

Additional District Judge, Jammu also failed having been dismissed vide order dated 08112001. It is under aforesaid circumstances, the petitioner

has come to this Court by invoking revisional jurisdiction for setting aside the aforesaid orders.

I have heard the learned counsel for the parties at length and perused the record.

It is relevant to notice some of the dates and the proceedings of the trial Court wherein exparte decree was passed. The suit came to be instituted

on 22nd Sept. 1995 and the defendant was ordered to be served. Defendant was not served for number of hearings and on 12121995, the Court

directed issuance of ""Doparta"" (duplicate) summons and the next date fixed on 15011996. On 15011996 it is recorded that one copy of the

summons has been pasted on the door of the defendant and next date was fixed for recording the statement of the Process Server on 18011996.

Statement of Process Server could only be recorded on 13071996 after eleven adjournments. The Court proceeded to initiate exparte

proceedings on 03081996. It is recorded in this order that the Statement of the process Server stands recorded, hence defendant set exparte.

Advocate of plaintiff was directed to lead exparte evidence. The evidence of the plaintiff was concluded on 10081996 and exparte decree for

eviction came to be passed on 18091996. On the record of the trial court there are four summons. First summon is dated 04091995 along with

carbon copy for appearance of the defendant on 18091995 and one Amar Singh Process Server was deputed to effect service. A report is made

by this Process Server on the back of the summon that he visited the defendant on the given address. However, he was not available at Home and

his family members avoided service. He prayed for orders of pasting the summons. Third summon is dated 05121995 alongwith carbon copy for

appearance on 12121995. This summon contains a report dated 11121995 by one SaifuDin. Process Server stating that he visited the defendant's

house on the identification of plaintiff and the defendant has refused to acknowledge the summon. He was informed of the date, name and place of

the Court. It is relevant to note that all the summons contained the name of the Court at the Top, title of the case Raj Kumar vs. Kartar Singh

Khorana. As far as the nature of the suit is concerned what is mentioned is only ""Suit"". Thereafter name, son of and address of the defendant is

given. The defendant has been ordered to appear for defence and written statement in the Court personally or through an Advocate on 12121995.

Statement of Process Server was recorded on 30071996. It is useful to notice his statement. He stated:

I went to the house of Kartar Singh situated at Mohalla Partap Garh for effecting service on him. He was not available at Home and one copy of

summon was pasted on his residential premises (Rihashgaha). Prior to that I went to serve him but he refused to acknowledge the summon"".

During the hearing of application for setting aside the exparte proceedings, the trial Court again recorded statement of SaifuDin, Process Server

who deposed that he accompanied the plaintiff to serve the summon upon defendantKartar Singh, but he refused to acknowledge the summon. In

crossexamination, he was asked whether the summon was accompanied with the copy of the plaint. To this suggestion, he said that there was no

copy of the plaint. To another question whether refusal was in the presence of any witness, he stated that he requested a Shopkeeper, but he

declined.

The Court primarily relied upon the statement of the Process Server recorded on 30071996 and his endorsement of ""refusal"" on the summon

and by relying upon the provisions of Order5 Rule 17 CPC held that nonaffixation of summon on the conspicuous places of the defendant's house

is only a irregularity and, thus, does not vitiate the decree which has been passed on the refusal of the defendant. The Court also relief upon the

proviso2 of Order 9, Rule13 CPC to arrive at this conclusion.

The appellate Court unfortunately did not go into the question of interpretation of provisions of Order5 Rule 17 and Order 9 Rule 13 of the

CPC and recorded following findings:

...While going through the order of Ld: Sub Registrar Munsiff, Jammu, it is apparent that the Ld: Sub Registrar, Munsiff Jammu has appreciated

the evidence adduced by the parties in support and rebuttal of the application presented by the appellantdefendant under 09 R13 CPC and by

satisfying himself that service upon the appellant defendant has been duly effected and appellantdefendant after having the knowledge of the

summons served upon him, has failed to appear in those proceedings, has passed a detailed exparte order under appeal. Therefore, in these

circumstances, I do not find any illegality or irregularity done by the trial court while deciding the application under 09 R13 CPC. As such this

appeal has no force which is accordingly dismissed and the order of the Ld:Sub Registrar, Munsiff, Jammu dated 16.1.2001 is upheld.

Learned counsel appearing for the respondent has referred to two judgments of this Court reported in 1994 J&K (12), Harbans Lal & others

vs. Charanjit Singh & others and 2001 KIJ 139, M/s. Jain Karyana Store vs. M/s. Veetrag Finance Corporation. In the judgment reported as

1994, a coordinate Bench of this Coirt while interpreting proviso2 of O. 9 R. 13 CPC formulated an opinion that irregularity in the service of

summon cannot be a ground for setting aside the exparte decree being a specific bar under the aforesaid provision. It is also held that non

compliance of O. 5 R. 2 and R. 17 also cannot come to the rescue of the judgment debtor for setting aside the exparte decree. Relying upon the

aforesaid judgment another coordinate Bench also held that in view of the proviso2 of O. 9 R. 13, noncompliance of O. 5 R. 2 and R. 17 is only

an irregularity. In this case summon was accompanied with the copy of the paint but there was noncompliance of O. 5 R. 17 CPC.

With a view to appreciate the intent and purpose of the provisions contained in O. 5 CPC as also the effect of noncompliance of these

provisions in the light of proviso2 of O. 9 R. 13 CPC, it is relevant to notice some of the relevant provisions of O. 5. These are reproduced below:

O. 5 R.I. Summons (1) when a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day

to be therein specified.

Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim:

[Provided further that where a summons has been issued, the Court may direct the defendant to file the written statement of his defence, if any, on

the date of his appearance and cause an entry to be made to that effect in the summons.]

(2) A defendant to whom a summons has been issued under subrule (1) may appear

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or

(c) by a pleader accompanied by some person able to answer all such questions.

(3) Every such summons shall be sigrr,J by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.

O. 5 R. 2. Copy or statement annexed to summons: Every summons shall be accompanied by a copy of the plant, or, if so permitted, by a

concise statement.

O. 5 R. 6. Fixing day for appearance of defendant: The day for the appearance of the defendant shall be fixed with reference to the current

business of the court, the place of residence of the defendant and the time necessary for the service of the summons and the day shall be so fixed

as to allow the defendant sufficient time to enable him t o appear and answer on such day.

O. 5 R. 12. Service to be on defendant in person when practicable or oh his agent: 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.

O. 5. R. 17. Procedure when defendant refuses to accept service, or cannot be found: Where the defendant or his agent or such other person as

aforesaid refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, cannot find the defendant,

who is absent from his residence at the time when service 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 there is no agent empowered to accept service of the summons on his behalf, nor any other

person on whom service can be made, the serving officer shall affix a copy of the summons 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 ands address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

O. 5. R. 19. Examination of serving officer: Where a summons is returned under rule 17, the Court shall if the return under that rule has not been

verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined

by another court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the

summons has been duly served or order such service as it thinks fit.

A perusal of the aforesaid provisions make it obligatory upon the Court td issue summons to defendant on institution of the suit under O. 5 R.

O. 5 R. 2 further requires that the copy for the plaint or if so permitted a concise statement to be served upon the defendant alongwith summon.

O. 5 R. 6 requires the Court to fix a date for defendant's appearance. Not only this, it also requires that sufficient time should be given to the

defendant to appear and answer on such a date. R. 12 prescribes service to be on defendant in person when practicable or on his agent, unless he

empowers any agent to accept service to be on defendant in person when practicable or on his agent, unless he empowers any agent to accept

service. R. 17 prescribes the procedure when defendant refuses to accept service. It clearly provides that where defendant refuses to sign the

acknowledgement or where the serving officer. After using all due and reasonable diligence, cannot find the defendant, the serving officer shall affix

a copy of the summons on the outer door or some other conspicuous parts of the house in which the defendant ordinarily resides or carries on

business or personally works for gain, and shall 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 by whom

the house was identified and in whose presence the copy was affixed R. 19 of O. 5 further provides examination of serving officer where a

summons is returned under rule 17. This rules further provides that the Court on examination of serving officer either declare that the summons has

been duly served or order such service as it deem fit.

The scheme of the Code contained under O. 5 as far the service of the summons is concerned does not seems to be a mere formality, but has

a de finite purpose sought to be achieved by the framers of these rules. If Rule1 makes it obligatory to issue summons to be defendant on institution

of the suit, the object is clear that the defendant must know the claim against him. Mere issuance of summons is not enough to make the defendant

know claims against him unless a copy of the plaint or concise statement is served upon him. The legislature has clearly and unambiguously used the

word 'defendant' to appear and answer the claim under R. 1 of O. 5 and this is only possible, if the copy of the plaint is served upon him. The

question that arises is are these provisions only directory or mandatory in nature. If the defendant is not informed of the date by a written summon

and is not served with the copy of the plaint then the suit cannot proceed. R. 6 of O. 5 also specifically requires the Court to fix a date for the

appearance of the defendant indicate place of residence of the defendant and also allow sufficient' time for service and the date shall be fixed in

such a manner so as to allow the defendant sufficient time enabling him to appear and answer.

Before proceeding further, it is pertinent to refer to the summons issued by the Court which contained endorsement of refusal. The summon

was issued on 09121995. The Process Server as per his own endorsement visited the defendant on 11121995. Whereas the date for appearance

was on 12121995. The process Server has not mentioned any thing about the time when he tendered the summons or sought to effect the service.

Admittedly the date for the appearance of defendant was 12121995 and the summon was not accompanied with the copy of the plaint. This fact is

evident from the absence of any such note in the summon and is rather admitted with the copy of the plaint. This fact is evident from the absence of

any such note in the summon and is rather admitted by the Process Server in his statement in proceedings under O. 9 R. 13 CPC. The summon

further reveals that defendant was required not only to defend, but also to file the written statement as is evident from the words used in the

summon (Parvivajawab dai). How could defendant defend himself and file written statement when he does not know the claim against him. In the

present case not only the provisions of O. 5 R. 1 and 2 are violated, even O. 6 not adhered to which inter alia requires the Court to fix a date in

such a manner so as to provide sufficient time to the defendant to enable him to defend and answer. Summons were allegedly tendered on

11121995 where as next date fixed on 12121995.

O. 5 R. 17 deals with the conduct of the defendant where he refuses to sign the acknowledgement or where he is not found due and

reasonable diligence. In both the situations the serving officer is under legal obligation to affix a copy of the summon on the outer door or some

other conspicuous parts of the house where the defendant resides. Not only this, he is also under an obligation to return the original to the Court

from which it was issued with a report endorsed thereon or annexed thereto stating that he has affixed the copy in accordance with the procedure

prescribed. He is also required to indicate the circumstances under which he affixed the copy of the summon the name and address of the person

by whom the house was identified and in whose presence the copy was affixed. A plain reading of this provision clearly demonstrates that refusal

and affixation of the summon must coexist and it cannot be segregated rather the reading of the second part of rule17 indicates that whenever there

is refusal or nonavailability of defendant, the serving officer has no option but to affix the copy of the summon on the outer door or some other

conspicuous parts of the premises where the defendant resides and make a report in this regard to the Court. He is also required to indicate the

circumstances and person in whose presence affixation of summon was carried out and who identified the house of the defendant. As a matter of

fact, these are procedural safeguards provided by law in public interest, otherwise an unscrupulous plaintiff in connivance with process serving

agency may play havoc with an innocent litigant. An endorsement by the process Server without any such refusal having been made in the presence

of any witness is capable of being abused and the defendant in the suit can be made to suffer a decree even without his knowledge. Therefore, in

my humble opinion the observance of second part of Rule 17 relating to affixation of summons cannot be said to be merely an irregularity. In the

present case, the summons have not been affixed. The trial Court in its order has drawn a presumption of affixing of summon relying upon

interlocutory order dated 15011996 wherein it is recorded that the summons have been pasted. Reference in this order is to a summon which was

directed to be issued on 12121995. No summon was issued on 12121995 as no copy of such summon is available on record with the report of

Process Server nor any note of issuance of such summons on the file. On the other hand the summon issued on 05121995 is on record which was

for appearance of the defendant on 12121995. In the order dated 12121995, there is no mention of either the endorsement of refusal by the

Process Server nor of affixation of the summon. It is interesting to note that the exparte proceedings have not been initiated on the basis of

summons which was issued for appearance on 12121995. The exparte proceedings appears to have been initiated on the basis of summon which

is said to be pasted and which summon is admittedly not on record or even copy thereof is not found. Both the copies of summon meant for

appearance on 12121995 are on record which clearly means that this summon was never pasted. The statement of Process Server recorded on

30071995 only says that he went to serve the summon and the defendant refused. Though there is mention of pasting of summon, but no date of

such summon and or the date of pasting is disclosed. Endorsement of refusal on summon meant for 12121995 has not been taken into

consideration by the trial Court as it does not find mention in any of the orders recorded after 12121995 though number of orders have been

passed thereafter. In so far pasting of the summon is concerned, the Process Server for the first time requested for Doparta (duplicate) summon on

15091995, however, the Court ordered issuance of duplicate summon on 12121995. No such summon was issued on 12121995 or between

12121995 to 15011996 as per record. The trial Court has also recorded a finding that no such summon is on record. How\a presumption can be

drawn in respect of a nonexistent fact.

Apart from the above Rule19 of O. 5 CPC also requires the Court to declare that the summon has been duly served before proceeding to

examine serving officer. No such satisfaction lias been recorded.

Coming to the provisions of O. 9 R. 13, it is relevant to note this provision which also reads as under:

Setting aside decree ex parte against defendant: In any case in which a decree is passed exparte, against a defendant, he may apply to the

Court by which the decree was passed fore an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he

was prevented by an sufficient cause from appearing when the suit was called on for hearing the Court shall make an order setting aside the decree

as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such 4, nature that it cannot be set aside as against such defendant only it may be set aside as against all or

any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an 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 plaintiffs claims.

Explanation: Where there has been an appeal against a'decree passed ex parte under this rule, and the appeal has been disposed of on any ground

other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

Second proviso to this Rule creates an embargo on the court to set aside a decree passed exparte, if there is an 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. This proviso requires

satisfaction not regarding the knowledge of the suit, but the knowledge of the date of hearing. The refusal was in respect of 12121995. Even, if the

knowledge of this hearing is attributed to the defendant as per the endorsement of refusal, he was not proceeded exparte on the said date. To the

contrary the Court ordered issuance of 'Doparta summon' (duplicate summon) for 15011996. No such summons are on record and there is

nothing to show that the summons were ever issued or pasted on the house of the defendant on any date or time for any particular date of hearing.

Unfortunately every thing has been presumed by the Court below simply relying upon an interlocutory order dated 15011996. The statement of

Process Server was recorded after more than six months. Even when the Process Server made a statement neither he was shown summon

containing statement of refusal nor any copy of the summon which was said to be pasted. Nothing is indicated about the date for which summon

was issued. I am at pain to notice t ha t the Courts below have acted in haste without adopting judicial approach and proceeded to confirm a

decree of eviction on surmises and conjectures without application of due mind.

Knowledge of suit and knowledge of date of hearing are two different things. It cannot be said that the defendant had the knowledge of hearing

of the case on 15011996 or any subsequent hearing on account of affixation of the summon and admittedly there was no affixation of summon

dated 05121995 which was meant for 12121995.

The Apex Court in (2002) 5 SCC 377, Sushil Kumar Sabharwal vs. Gurpreet Singh and others while considering the procedure prescribed

under O. 5 R. 2, 17 and O. 9 R. 13 held as under:

We find several infirmities and lapses on the part of the process server. Firstly, on the alleged refusal by the defendant either he did not affix a

copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the

summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy

of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The

endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie.

The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One

can understand refusal by unwilling persons requested by the process server to witness the proceedings and be a party to the procedure of the

service of summons but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt.

Incidentally, we may state that though the date of appearance was 23.2.1993 the summons is said to have been tendered on 22.2.1993 i.e. just a

day before the date of hearing.

The High Court has overlooked the second proviso to Rule 13 of Order 9 CPC, added by the 1976 Amendment which provides that no

Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that

defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. It is the knowledge of the 'date of

hearing' and not the knowledge of 'pendency of suit' which is relevant for the purpose of the proviso above said. Then the present once is not a

case of mere irregularity in service of summons; on the facts it is a case of nonservice of summons.

The provision contained in Order 9 Rule 6 CPC is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff

appears and the defendant does not appear and three courses to be followed by the Court depending on the given situation. The three situations

are: (i) when summons duly served (ii) when summons not duly served, and (Hi) when summons served but not in due time. In the first situation,

which is relevant here, when it is proved that the summons was duly served, the Court may make and order that the suit be heard ex parte. The

provision casts an obligation on the court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being

'proved' that the summons was duly served when and when along, the Court is conferred with a discretion to make an order that the suit be heard

ex parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a

conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or causal 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. If only the trial court would have been conscious of its obligation cast

on it by Order 9 Rule 6 CPC, the case would not have proceeded ex parte against the defendantappellant and a wasteful period of over eight

years would not have been added to the life of this litigation.

Be that as it may, we are satisfied that the summons was not served on the defendantappellant. He did not have an opportunity of appearing in

the trial court and contesting the suit on merits. The trial court and the High Court have committed a serious error of law resulting in failure of

justice by refusing to set aside the exparte decree.

Facts of present case are similar to the case noticed by Hon'ble Supreme Court in above referred judgment. Observations of Apex Court

clearly suggest that the procedure prescribed under O. 5 can not be ignored and its non compliance seriously prejudice the defendant., It is further

held that procedure must be adhered to.

In view of the law laid down and in the totality of the circumstances indicated above, the orders passed by the Court below are not sustainable.

I hereby set aside both the orders dated 8th Nov. 2001 passed by the learned 21Kl Additional District Judge, Jammu and dated 16.1.2001

passed by learned Sub Registrar, Munsiff, Jammu. Consequently allow the application under O. 9 Rule. 13 CPC and setaside the exparte decree

dated 18111996 in Civil Suit No. 135/Civil. This Civil Revision is allowed with costs of Rs. 5.000/ to be paid by the respondent to the petitioner.

As a consequence of setting aside of the impugned orders and consequently exparte decree, the suit filed by respondent shall revive. Petitioner

defendant shall appear before the trial Court and file his written statement of defence on or before 01052006.

Let the record of trial Court be returned forthwith.