Mahesh Chandra Kandpal & Others vs Shyam Sundar Singh @ Ghanshyam Singh

Lok Pal Singh, J

Petitioners have invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India seeking a writ of certiorari quashing the impugned order dated 16.02.2018 passed by learned First Additional District Judge, Nainital in Misc. Civil Appeal No.04/2017 "Shyam Sundar Singh @ Ghanshyam Singh vs. Mahesh Chandra Kandpal & Ors.

Brief facts of the case are that the petitioners/plaintiffs instituted a suit being Civil Suit No.104 of 2012 in the court of Civil Judge (S.D), Nainital, against the respondent for a decree of permanent injunction. Notices were issued to the respondent and the service was effected by affixation. However, as the defendant/respondent did not appear before the trial court, the case proceeded ex-parte against him, vide order dated 20.11.2012. The trial court, after hearing the plaintiffs and on perusal of record, passed an ex-parte judgment and decree dated 21.03.2015 in favour of the plaintiffs/petitioners.

Thereafter, the respondent moved an application under Order 9 Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte judgment and decree dated 21.03.2015, on the ground, that he was not residing in the address given in the suit and the summons were not served upon him. He also alleged that he was not aware about the pendency of the suit and could know about the same on 5.4.2016 when he went to Tehsil. Learned Trial Court, by order dated 06.02.2017, dismissed the application of the defendant. While doing so, the court recorded a finding that the defendant could not prove the fact that he was not aware about the pendency of the suit and that summons were issued to him but he intentionally avoided the service. Feeling aggrieved, defendant/respondent preferred an appeal being numbered as Misc. Civil Appeal No.04/2017 before the District Judge, Nainital. Learned Additional District Judge, Nainital, vide judgment and order dated 16.02.2018, allowed the appeal. The lower appellate court observed that the service effected upon the defendant was not sufficient as the defendant was not residing in the address given in the suit. It was also observed that the plaintiff has not filed any evidence in rebuttal so as to show that the address given in the suit is correct.

I have heard learned counsel for the parties and perused the entire material available on record.

A perusal of ex-parte judgment and decree dated 20.11.2012 passed by the trial court would reveal that summons were issued to the defendant/respondent and the service was effected by affixation. In the application moved under Order 9 Rule 13 of C.P.C., the defendant/respondent has denied his address given in the suit and has also filed certain documents so as to substantiate his claim. While allowing the appeal, the appellate court has observed that the defendant was not served sufficiently before passing of ex-parte judgment and decree.

This Court finds that the judgment of the trial court does not indicate that a copy of the summons was affixed in a conspicuous place on the court house and at the house where the defendant was known to have last resided. There was a breach of the provisions of Order V Rule 20 (1) of the C.P.C committed by the trial court. Order V Rule 20 of C.P.C. requires the court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the trial court has failed to apply its mind to the requirements of Order V Rule 20 and has passed a mechanical order. The court should be vigilant that the substituted service may be managed by the plaintiff which may deny fair opportunity to the defendant. In the absence of sufficient service upon the defendant, the trial court ought not to have proceeded ex-parte against the defendant/respondent.

It is a well settled principle of natural justice that no one should be condemned unheard. In the present case, as stated aforesaid, defendant/respondent was not served and opportunity of hearing was not provided to him before passing of the ex-parte judgment and decree. In such view of the matter, there appears to be no illegality committed by the lower appellate court in setting aside the ex-parte judgment and decree dated 21.03.2015 passed by the trial court.

For the foregoing reasons, writ petition fails and is hereby dismissed. As the suit is of the year 2012, trial court is directed to decide the suit within a period of one year from today. It is made clear that unnecessary adjournments shall be avoided and the parties shall cooperate for expeditious disposal of the case.

No order as to costs.