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Tarlok Singh Chauhan, J.—This is an application under Order 9 Rule 13 read with Section 151 of the CPC preferred on behalf of the defendants/applicants for setting aside ex-parte decree passed on 24.7.2013. It has been stated that the defendants were informed by the attendants employee of the factory premises i.e. No. 9, Barotiwala Industrial Area, Nalagarh Road, district Solan that some officials had visited the premises in connection with taking over the possession of the factory building etc. on 23.9.2013 pursuant to the decree obtained by the plaintiffs. It has been specifically stated that the defendants had never been served with any summons in the past pertaining to the above noted suit either by registered AD post or through Process Server and were rather shocked and surprised that in utter violation of the terms and conditions of the MOU dated 8.11.2007, the plaintiffs had filed a suit for specific performance against the defendants. The defendants have even quoted certain clauses from the MOU to claim that it was the Court at Delhi alone which have the jurisdiction and not this Court.
It has been averred that the suit otherwise was not maintainable. The MOU had provided alternative forum of resolving the dispute under the provisions of Arbitration & Conciliation Act, 1996. The defendants have further averred that defendant No. 2 Vijay Kumar Chawla had shifted his residence from Noida to Greater Kailash, New Delhi way back in the year 2008 and this fact was within the knowledge of Jacob Cherian, who originally instituted the suit and prosecuted the same till May, 2013 and thereafter, he resigned from the directorship suddenly and was substituted by Mr. Simon Patrick. The rest of the averments made in the application are not necessary for the adjudication of this application and therefore are not being referred to.
The plaintiffs filed its reply to the application wherein preliminary objections were raised to the effect that the defendants had not come with clean hands and has suppressed the material facts from the Court. It was stated that after filing the suit, the notices were sent to the defendants by the Court by way of dasti service vide order dated 10.3.2009. When the Process Server had gone to effect service upon the defendants Vijay Kumar Chawla, he was not found available and one woman who was present at the spot told that no such like person resides at the given address and the summons were returned back by the Process Server. Thereafter, again summons were sent and the defendants were not found even on 17.4.2009.
It has been further averred that the summons were sent to the defendants at the time when the ex-parte ad-interim injunction order was passed by the Court and even then the service could not be effected on the given address despite this time the General Power of Attorney of the plaintiffs was also present. It has been averred that the public notice was issued in the news paper i.e., Times of India, Chandigarh edition dated 9.6.2008 having circulation widely in the area of Barotiwala (Baddi), Tehsil Nalagarh informing the pendency of the suit filed by M/s. Pro-Bono Publico Health Care Ltd. and cautioned the prospective buyers through Chief Financial Advisor Ashok Malik. The copies of the summons/report of the Process-Server and public notice was annexed as Annexures R-1 to R-3 with the reply. A number of allegations have also been levelled against the defendants which are not necessary for adjudication of the case. It has also been stated that the defendant was avoiding the service deliberately and had "committed sheer negligence" by not putting in appearance despite having such knowledge. This application was a deliberate attempt to mislead the Court as the address given by the plaintiffs was correct as defendants were still residing at the given address and the address of the company was still same as given in the record.
Lastly, it was averred that the application for setting aside the ex-parte decree was time barred, particularly when the defendants were having knowledge regarding the pendency of the suit and that the application was liable to be dismissed because no separate application u/s 5 of the Limitation Act had been filed.
The defendants filed the rejoinder to the reply filed by the plaintiffs wherein defendants controverted the allegations of the plaintiffs and reiterated the contents of the application.
The main question which arises for consideration at this stage is whether defendants were infact duly served with summons issued from time to time in accordance with law or not. From the record, It would appear that alongwith the suit an application under Order 39 Rules 1 & 2 read with Section 151 CPC was also preferred by the plaintiffs which came up for consideration on 21.8.2008 and ad-interim ex-parte injunction was passed by this Court in favour of the plaintiffs and the provisions of Order 39 rule 3 CPC was directed to be complied with. In compliance to such order of the Court, the summons issued to defendant No. 1 were received back vide report of the Process Server dated 12.9.2008 to the effect that company had already closed and there was no person found there, therefore, summons could not be served. Similarly, there is report of the Process Server dated 19.9.2008 that the company is in ruinous conditions and despite having entered into the premises there was no person found in the premises.
Insofar as the summons issued to defendant 2 is concerned, it was reported that defendant No. 2 Vijay Kumar Chawla had vacated the premises and shifted somewhere else. On the registered AD cover notice sent to defendant No. 2, it was reported that there was no factory by the name of M/s. Reliance Bulk Drugs & Formulations Ltd. In the second registered AD cover notice, the name of defendant No. 2 has been written as Vijay Kumar Sharma instead of Vijay Kumar Chawla. However, report even on this registered AD cover has been received back with the report that the addressee has left the premises.
The summons send again by this court, it was reported on 29.12.2008 by the Process Server that the defendant company was lying closed, neither any of the owner visited this premises and this time it was specifically stated that the defendant No. 2 Vijay Kumar Chawla was residing in Delhi but had not visited the factory premises after January, 2008. In the summon sent to defendant No. 2, it has been reported on 30.12.2008 that the Process Server had gone at the given address of the said defendant and it was found that the defendant No. 2 was not residing at the given address as has been confirmed by the lady who refused to disclose her name.
On the summons subsequently issued, the report of the Process Server dated 17.4.2009 which is witnessed by the General Power of Attorney of the plaintiffs the report is to the effect that the defendants could not be found on the given addresses as they were not residing at the given addresses or carrying their business for the last so many years. Thereafter, again summons were issued to the defendants and on 30.3.2009 the Process Server again reported that there was no person of such name residing at the given address.
The plaintiffs instead of taking fresh steps for the service of defendants by filing their correct addresses instead chose to file an application being OMP No. 198 of 2009 for effecting service upon the defendants by way of publication wherein the following averments were made:-
That the aforesaid Civil Suit is pending adjudication before this Hon''ble Court.
That during the pendency of the suit the Hon''ble Court had been pleased to issue notice to the defendants vide order dated 21.8.2008 and since then the plaintiff has tried his level best to get defendants served through ordinary service as well as Dasti but the defendants could not be served for want of correct address till date.
As per inquiry held by the plaintiff, the address given in the plaint of the defendants are the only addresses available with the plaintiff and the defendants are avoiding the service with one pretext or the other and it has become impossible to effect the service by way of ordinary process.
That as submitted above, even after passing the orders by the learned Deputy Registrar on 23.4.2009, the applicant/plaintiff tried his level best to find out new and fresh address of the defendants but they could not succeed so far. Now, in order to avoid further delay in effecting the service, the applicant-plaintiff prayed that service of defendants No. 1 & 2 may please be ordered to be effected by way of publication.
It is, therefore, most respectfully prayed that this application may kindly be allowed and the service by way of publication under Order 5 rule 20 CPC may kindly be ordered to be permitted so that further delay may kindly be avoided or any other order which this Hon''ble Court may deem fit may kindly be passed in the interest of justice.
A perusal of the para-2 of the application would show that the plaintiffs themselves have admitted that despite receiving dasti notice, the defendants could not be served for want of correct address. However, it has been stated in para-3 of the application that on enquiry conducted by plaintiffs, the address given in the plaint of the defendants are the only addresses available with the plaintiff and the defendants are avoiding the service on one pretext or the other and it has become impossible to effect the service by way of ordinary process. Lastly in paragraph-4 of the application, it has been stated that after passing of the orders by the Deputy Registrar on 23.4.2009, the plaintiff tried his level best to find out new and fresh address of the defendants but they could not succeed so far. The plaintiffs on the basis of such allegations had prayed that service upon defendants No. 1 and 2 to be effected by way of publication.
This application appears to have been listed before the Registrar (Inspection) who on 21.5.2009 passed the following order:-
The learned counsel for the plaintiff has moved an application under Order 5 rule 20 of CPC read with Section 151 CPC for the service of defendants No. 1 and 2 through publication. The learned counsel for the plaintiff has stated that the plaintiff has tried his best for the service of defendants No. 1 and 2 through ordinary process as well as through Dasti notice but the defendants could not be served on the address which is available to the plaintiff and has stated that it is not possible to serve the defendants in an ordinary course and requested for effecting service through publication in Dainik Bhaskar having wide circulation in Delhi and Himachal Pradesh.
Publication charges + transmission charges for the service of defendants No. 1 and 2 not filed. Be filed within two weeks, and thereafter, publication be made for 16.7.2009.
Order 5 Rule 20 CPC provides that:-
Substituted service- (1) where the Court is satisfied 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 can not be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court House, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
{(1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain}
(2) Effect of substituted service-Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted time for appearance to be fixed- Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.
A bare reading of the Rule 20 of Order 5 clearly indicates that the powers under this Rule are to be exercised and substituted service of summon is to be ordered when one of the following conditions arises:-
(1) That the defendant is keeping himself away and is avoiding service of summons ''
(2) That for any other reasons, the summons cannot be served in the ordinary way.
Therefore, essentially non-fulfillment of either condition necessary for exercise of power would amount to material irregularity and consequently the order is liable to be set aside. The recording of satisfaction at the instance of the Court is a condition precedent required for the exercise of power.
In Swami Pragya Nand Vs. Ram Swaroop Kapur and Others, it has been held that the provisions or Order 5 Rule 20 CPC are not to be read in isolation but in conjunction with other provision of Order 5 which shows that the order regarding service of defendant by way of publication in the newspaper is to be pressed as a last report when there is no possibility of effecting service on him by other modes as provided therein. It has further been held that before passing order of substituted service by publication in the newspaper, the Court must satisfy itself that there are reasons to believe that the defendant was keeping out of the way to evade service. If the order of substituted service is passed mechanically by the Court, there is likelihood of misuse of the process of the Court. It would be relevant to refer para-9 of the judgment which reads as under:-
In the present case, the provisions of Order 5, C.P.C. have not been adhered to at all under Rule 12 of Order 5 C.P.C. it is provided that where ever 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. Further, under Rule 15 of Order 5 C.P.C. it is laid down that if the defendant is not found by the Process Server nor has he any authorized agent to accept service of summons, service may be effected on any adult male member of the family of the defendant who may be residing with him. Under Rule 17 of Order 5, C.P.C., if the serving officer, after using all due and reasonable diligence cannot find the defendant and there is no authorized agent or any male member of the house to accept service, the serving officer should affix a copy of the summons on the outer door or some other conspicuous part of the house in which defendant ordinarily resides or carries on business or personally works for gain and shall make a report relating thereto giving all the facts and circumstances. It is only then the modes of service provided under Rules 15 and 17 of Order 5, C.P.C. are complied with and the Court is satisfied and comes to the conclusion that there are reasons to believe that the defendant is keeping out of the way for the purpose of evading service or that for any other reasons, the summons cannot be served in ordinary way, the Court may order summons to be served by substituted service which is by affixing a copy on some conspicuous part of the house last resided by him or where he carried on business or personally worked for gain lastly. But this mode of substituted service is to be adopted as a last resort and the Court has been empowered to order service of the defendant in any other manner which has now been clarified in the amended Rule 20(1-A) that service may be ordered to be effected through publication in the newspaper. The provisions of Order 5 Rule 20, C.P.C. are not to be read in isolation but in conjunction with earlier provisions which shows that order regarding service of defendant by way of publication in the newspaper is to be passed as a last resort when there is no possibility of effecting service on him by other modes as provided therein. Before passing order of substituted service by publication in the newspaper, the Court must satisfy that there are reasons to believe that the defendant was keeping out of the way to evade service. If the order of substituted service is passed mechanically by the Court, there is likelihood of misuse of the process of the Court. So far the order of substituted service by publication in a newspaper is concerned, it should not be passed lightly without ascertaining whether the pre-requisites of Order 5 Rule 20, C.P.C. are fulfilled as it is a matter of common knowledge that generally people do not read court notices in the newspapers. The anxiety of the Courts to expedite the proceedings in cases by hurrying up with the service of the defendant by resorting to extraordinary mode of substituted service, such as publication in the newspaper, may defeat the very purpose and result in gross injustice (See: Baljit Singh Bhatia Vs. Kulwant Singh and others Kuldip Rai Vs. Sharan Singh (deceased by LRs) and Others, Sant Kaur Vs. Khazan Singh and Others, Smt. Ishro Vs. Sarmukh Singh and Others, Harbhej Singh Vs. Diwan Singh and Others, and Bijender Singh Vs. Ranbir Singh and Others,
This Court in Aar Kay Traders Vs. Satish Electronics, on the interpretation of the amended provisions of the CPC has clearly held that summon cannot be issued by reregistered post. AD, in case defendant resides outside the territorial jurisdiction of the Court.
This Court in Swami Pragya Nand vs. Ram Swaroop Kapoor and others (supra) in fact has taken view that "generally people do not read Court notices in the news papers. The anxiety of the courts to expedite the proceedings in cases by hurrying up with the service of the defendant by resorting to extraordinary mode of substituted service, such as publication in the news papers, may defeat the very purpose and result in gross injustice."
Insofar as the question of filing a separate application for condonation of delay in filing the application to set aside ex-parte decree is concerned, no application for condonation of delay is required to be filed in view of the fact that the application was within time from the date of knowledge and there is nothing to the contrary produced on record by the plaintiff.
The Court cannot taken hyper technical view for setting aside the ex-parte decree on the ground that no separate application of the Limitation Act. has been filed as held by the Hon''ble Supreme Court in Bhagmal and Others Vs. Kunwar Lal and Others, as follows:--
This well considered order of the appellate Court came to be interfered with by the High Court solely on the ground that there was no application for condonation of delay made by the appellants/defendants before the Trial Court in support of their application under Order IX Rule 13 CPC. The High Court observed that the appellate Court had not recorded any finding on the question as to whether the filing of the application u/s 5 of the Limitation Act was necessary or not and went on to decide the application on merits and, therefore, it had exceeded its jurisdiction. The High Court also commented on the fact that the ex-parte decree was decided on 19.4.1985, while the application for setting aside the ex-parte decree was filed on 8.7.1988 and that no application for condonation of delay u/s 5 of the Limitation Act was filed.
Relying on Article 123 of the Limitation Act, the High Court took the view that the application ought to have been filed within 30 days from the date of passing of the decree and since it was not so filed, at least a condonation of delay application should have been made u/s 5 of the Limitation Act and, therefore, in the absence of prayer for condonation of delay, the appellate Court could not have allowed the application under Order IX Rule 13.
In our opinion, the High Court was not justified in taking a hypertechnical view. We have seen all the orders. It is quite clear from the Trial Court''s order that the Trial Court entertained the application on merits. The Trial Court undoubtedly has referred to the reply of the respondents to the effect that the application for setting aside the ex-parte decree was beyond the limitation. However, the view taken by the Trial Court was based more on the merits. In fact, it went on to record the finding that there was no compromise and the theory of compromise and delay on account of that was not acceptable. The Trial Court has more or the less based its findings regarding delay on the basis of the order sheets. That was not right as the order sheets nowhere bore the signatures of the parties. They were mechanically written mentioning "parties as before". Therefore, the Trial Court did not throw the application under Order IX Rule 13 merely on the basis of the fact that no application for condonation of delay was made. It went on to consider the delay aspect as well as the merits and even allowed the parties to lead evidence. It is to be seen here that the question of delay was completely interlinked with the merits of the matter. The appellants/defendants had clearly pleaded that they did not earlier come to the Court on account of the fact that they did not know about the order passed by the Court proceeding ex-parte and also the ex-parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellants/defendants for making the Order IX Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order IX Rule 13 application was, in our opinion, rightly considered by the appellate Court on merits and the appellate Court was absolutely right in coming to the conclusion that appellants/defendants were fully justified in filing the application under Order IX Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex-parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hyper-technical view that no separate application was filed u/s 5. The application under Order IX Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice. Here was a party which bona fide believed the assurance given in the compromise panchnama that the respondent No. 1/plaintiff would get his suit withdrawn or dismissed. The said compromise panchnama was made before the elders of the village. Writing was also effected, displaying that compromise. The witnesses were also examined. Under such circumstances, the non-attendance of the appellants/defendants, which was proved in the further proceedings, was quite justifiable. The appellants/defendants, when ultimately came to know about the decree, had moved the application within 30 days. In our opinion, that was sufficient.
What would constitute sufficient cause as also what would be the prerequisites of filing an application for setting aside the ex-parte decree has been set out: by the Hon''ble Supreme Court in Parimal Vs. Veena @ Bharti,
Order IX, R. 13 CPC:
The aforesaid provisions read as under:
Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for 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 any 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;
xx xx xx
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 the plaintiff''s claim.
(Emphasis added)
It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.
"Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., Sarpanch, Lonand Grampanchayat Vs. Ramgiri Gosavi and Another, Surinder Singh Sibia Vs. Vijay Kumar Sood, and Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Another,
In Arjun Singh Vs. Mohindra Kumar and Others, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: 22 CWN 169 (Privy Council) Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, and Mata Din Vs. A. Narayanan,
While deciding whether there is a sufficient case or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, Madanlal Vs. Shyamlal, Davinder Pal Sehgal and Another Vs. Partap Steel Rolling Mills Pvt. Ltd. and Others, ; Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, ; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).
In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.
Mr. Anand Sharma, learned counsel for the plaintiffs has sought to rely upon following observations from the judgment of the Allahabad High Court in Smt. Ram Pyari Devi Vs. IInd Addl. District Judge, Azamgarh and Others,
The order for service through the publication was passed upon the applications Nos. 12-D and 15-D filed by the plaintiff. This Court is entitled to assume that those applications must have contained the relevant averments based on which the plaintiff requested the Court to issue summons for publication. It is apparent that the Court must have been satisfied on the basis of those applications that the defendants are keeping out of the way for the purpose of avoiding service or that the summons could not be served on the defendants in the ordinary way. The petitioner could have demonstrated by filing copies of those applications or otherwise that there was no material on the basis of which the Court could have ordered issue of summons in some local newspaper. The petitioner, however, did not choose to avail of that opportunity. She neither filed the applications moved by the plaintiff nor any other material to show that exercise of power by the Court under O. 5 R. 20 of the Civil P.C. was irregular or illegal.
I am unable to agree. From the mere fact that the previous attempts to serve the defendants were not treated by the Court as sufficient the Court was not precluded from ordering substituted service under O. V R. 20, if there was material to indicate that the defendants were keeping out of the way for the purpose of avoiding service. The petitioner has failed to show that the Court below was so satisfied. The applications 12-D and 15-D of the plaintiff on which the Court passed the order must have furnished the necessary material for such satisfaction. At any rate in the absence of any material to the contrary, I see no ground for disapproving the finding recorded by the lower appellate Court that service by publication on the defendants was valid and proper. Both the Courts below have held that the defendants had refused to accept the summons. The lower appellate Court had the entire record before it and there is no warrant for holding that the finding of the lower appellate Court is vitiated in law or otherwise perverse.
Learned counsel also placed strong reliance on a decision of this Court in the case of Smt. Jaggi v. Bhagwan Das reported in 1969 ALL LJ 1144 in support of his contention that mere notice of the suit is not enough and that if the defendants were not duly served the Court could not legally proceed ex parte against them. This decision has no application to the facts of the present case inasmuch as both the Courts below have found that the defendants had been duly served through publication. Service through publication is also a valid service. The Court below was, therefore, competent to proceed to dispose of the suit ex parte.
Mr. Anand Sharma, learned counsel for the plaintiffs would contend that it was not mandatory for the Registrar to record reasons for satisfaction that the defendant was keeping out of the way for the purpose of avoiding service of summons. There was no duty is cast upon Court to explicitly express its satisfaction as contemplated in Rule 20 as this was not the intention of Legislature. For this purpose, he relied upon the following observations from the judgment in P. Baskaran Vs. Ayyakannu Chettiar and Others, which reads as follows-
While the intention of the legislature is gathered in such a way, it has to be inevitably held that no duty is cast upon the Court under Rule 20 to explicitly express its satisfaction by recording the reasons and same ought to be inferred from other circumstances, namely, the earlier hearings where service of summons was either defeated on behalf of the defendant or made impossible by any other means.
(Emphasis supplied)
29 In such view of this matter, the contention that the Court has to furnish reasons for its satisfaction under Rule 20 has to be discountenanced. Following the principle laid down by the supreme Court, it is observed that the Court is not bound to record reasons for satisfaction. It is also regarded that Rule 20 has not been drafted in such a way, making it obligatory or mandatory on the part of the Court to perform such function. It is not a statutory duty cast on the Court.
In para-28 as relied hereinabove, it is clearly held that the Court has to be satisfied from the "other circumstances" namely, the earlier hearing where service of summon was either defeated on behalf of the defendant or made impossible by any other means (emphasis supplied), In the present case the other circumstances do no support the claim of the plaintiffs that the summons either were defeated on behalf of the defendants or made impossible by any other means. Thus, to my mind the reliance on the aforesaid judgment is totally misplaced.
The ratio of this judgment, if relied, would be direct conflict with the judgment of Ram Pyari''s case (supra) as it categorically has been laid down that the Court is required to be satisfied that the defendants are keeping out of the way for the purpose of avoiding service or that the summons could not be served on the defendants in the ordinary way.
The mere fact that the defendants could not be served on the address supplied by the plaintiffs and this was the only address available with the plaintiffs would not relieve the plaintiffs for supplying the correct address or at the same time would not relieve the Court from its duty of recording satisfaction regarding reasons as contemplated under O. 5 R. 20 CPC.
The learned counsel for the plaintiffs has then relied judgment of High Court of Madan Lal (since deceased) and Others Vs. Prabhu Dayal and Others, , contended that there was sheer negligence on part of the defendants and they lacked bona fides of filing of the application. The ex-parte decree could only be set aside on showing sufficient cause for non-appearance and not in case of gross negligence. I am not in a position to agree with the submissions of the learned counsel for the plaintiff since this is a case where admittedly defendant was not served nor there was any material available on record that he deliberately or knowingly evaded the process of this Court. Rather the material available on record would show that the defendants had no knowledge regarding pendency of the suit. Thus, the aforesaid judgment is not applicable in the facts and circumstances of the case.
Even otherwise, it is settled law the expression sufficient cause has to be liberally construed when the defence is reasonable and the none appearance is neither mala fide nor intentional as held by Hon''ble Supreme Court in G.P. Srivastava Vs. Shri R.K. Raizada and Others,
Under Order 9, Rule 13, C.P.C. an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any ''sufficient cause'' from appearing when the suit was called on for hearing. Unless ''sufficient cause'' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The ''sufficient cause'' for non-appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If ''sufficient cause'' is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.
In the instant case, it is not disputed that the nephew of the counsel of the appellant had died in a road accident on the date of hearing and that the appellant himself was not at the station on account of his employment and illness. The mere fact of obtaining a certificate from a private doctor could not be made a basis for rejecting his claim of being sick. Both the trial Court as also the High Court have adopted a very narrow and technical approach in dealing with a matter pertaining to the eviction of the appellant despite the fact that he had put a reasonable defence and had approached the Court for setting aside the ex parte decree, admittedly, within the statutory period. Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant-defendant is allowed opportunity to prove his case within a reasonable time.
From the collective reading of the reports made by the Process Server from time to time alongwith the contents of the averments made in the application preferred by the plaintiffs under order 5 Rule 20 CPC (OMP No. 198 of 2009) read with the order passed by the Registrar (Inspection) on 21.5.2009, it would clearly go to show that the provisions of order 5 CPC in fact have not been complied with before passing the order for substituted service by publication in a newspaper. Not only was it obligatory and incumbent upon the plaintiff to have filed the correct addresses of the defendants on the face of the reports regarding service made by the concerned agency from time to time but even the Court (Registrar Inspection) was required to record his satisfaction that the defendant was keeping out of the way for the purpose of avoiding service. The order dated 21.5.2009 appears to have been passed mechanically in utter disregard to the requirement of law and in fact it would not be exaggeration to say that this order was a misuse of the process of the Court. Thus in view of the aforesaid settled preposition of law, the Court is bound to adopt a liberal and elastic approach rather than attracting queering and disparity approach. In my considered view the defendants can not be said to have been legally and validly served in the present proceedings, moreover, the plaintiffs have failed to prove the defendants either had notice of the pendency of the suit or notice of hearing. The application is therefore, allowed. The ex-parte judgment and decree dated 24.7.2013 passed by this Court against defendants is set aside. Accordingly, the defendants are allowed to join the proceedings and directed to file their written statements within 30 days.