Mohd. Saleem and Others vs Ejaj Ahmed

Nawal Kishore Agarwal, J.—Instant miscellaneous appeal filed under Order 43 Rule 1(t) of the Code of Civil Procedure, 1908 (for short "the Code") is directed against the order dated 22-11-1996 passed in MJC No. 35/1996 by the 7th Additional District Judge, Bilaspur rejecting the appellant''s application filed under Order 41 Rule 21 read with Section 151 of the Code. This is a landlord-tenant litigation. The appellants and respondent are legal representatives of original tenant/defendant and landlord/plaintiff, who died during pendency of this appeal. The original defendant/tenant was aggrieved by an ex parte decree dated 13-5-1996 passed by the 7th Additional District Judge, Bilaspur in Civil Appeal No. 20-A/1993 reversing the judgment and decree dated 22-2-1993 passed by the 6th Civil Judge Class-2, Bilaspur in Civil Suit No. 78-A/1991 and granting decree for recovery of arrears of rent and eviction from the suit premises.

An application under Order 41 Rule 21 read with Section 151 of the Code seeking setting aside of ex parte decree was filed, which was opposed, enquired into and rejected by the First Appellate Court. Hence, this appeal.

A perusal of record of the proceedings shows that the Process-Server was entrusted with summons for service on the defendant/tenant. The date of hearing fixed was 15-12-1995. As per the endorsement of the Process-Server on the summons, he went to the spot. The defendant was present there on 14-12-1995. He tendered him the summons. The defendant/tenant refused to accept the summons. Then, he served the summons by throwing the same on his body. Admittedly, neither the above endorsement was witnessed by any person identifying the defendant/tenant and the suit premises nor the Process-Server has filed any affidavit in terms of Order 5 Rule 19 of the Code.

The provisions of Rules 2, 17 and 19 of Order 5 of the Code are relevant and are reproduced thus:--

ORDER V

Copy of plaint to accompany summons.--Every summons shall be accompanied by a copy of the plaint.

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 acknowledgment, 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 and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

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 enquiry 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.

I find several infirmities and lapses on the part of the Process-Server. Firstly, there is no endorsement on the summons that the summons was accompanied by a copy of the plaint; secondly, on the alleged refusal by the defendant/tenant, he did not affix the copy of the summons and plaint on the wall of the suit house; thirdly, the alleged refusal was not witnessed by persons identifying the defendant and the suit house, he did not file any affidavit to verify the return of original summons to the Court, as is required under Rule 19 of Order 5; and before proceeding ex parte against the appellant, the Court has also not examined the serving officer on oath. Therefore, the correctness of such endorsement is difficult to believe even prima facie. Thus, it is crystal clear that notice was not served on the defendant in accordance with the mandatory procedure prescribed under Order 5 Rules 2, 17 and 19 for service of summons in the Civil Procedure Code.

The appellant himself appeared in the witness box and deposed on oath that no summons was tendered to him by any Process-Server of the Court. It is also pertinent to note that the date of hearing mentioned in the summons was 15-12-1995 whereas as per the Process-Server''s report, the appellant/tenant refused to accept the summons on 14-12-4995, just one day-before the date of hearing.

Considering every aspect of the matter, I am satisfied that the summons was not duly served on the defendant. He did not have any opportunity of appearing and contesting the appeal on merits. The First Appellate Court, thus, had committed a serious error of law resulting in failure of justice by refusing to set aside the ex parte decree.

As a result, the appeal is allowed. The order of the First Appellate Court dated 22-11-1996 passed in MJC No. 35/1996 is set aside. The application filed by the appellant under Order 41 Rule 21 read with Section 151 of the Code is allowed. The ex parte decree dated 13-5-1996 is set aside.

The matter is remitted back to the First Appellate Court to decide the appeal preferred by the respondent/landlord in accordance with law on its own merits. The appellants are directed to appear before the District Judge on 4-3-2013. The District Judge, Bilaspur shall direct the concerned Court to decide the case on its own merits in accordance with law after issuing summons to the respondent/landlord. No order as to costs.