Snehlata Devi vs Babu Janardan Prasad Singh and Others

Varma, J.—The petitioner in this case has moved this Court against an order passed under Order 9, Rule 13, Civil P.C., passed by the lower Appellate Court refusing to set aside an ex parte decree passed by the learned Munsif. One Janardan Prasad Singh and others brought a suit to enforce a simple mortgage bond executed by Shaligram Prasad Singh who and his sons Babu Baghubir Prasad Singh and Ganesh Prasad were impleaded as defendants first party. Srimati Snehlata Devi, the present petitioner, was the purchaser of a portion of the mortgaged property and figured in the suit as defendant second party, and it was she who made an application under Order 9, Rule 13.

Her allegation was that although her husband''s village is Koriapatti, she resides mostly with her mother''s sister, who happens to be the widow of a zamindar of Shakarpura, Bahadur pur, and on the date that the summons is said to have been served by the peon she was not at Koriapatti. The learned Munsif in dealing with this petition examined a number of witnesses, and the peon, who is said to have served the summonses, was examined on commission on the ground that he was ill.

The Commissioner''s report was taken in, and the peon''s evidence was used for the purpose of coming to the finding that the summonses were properly served. The Courts below have referred to the fact that the other defendants appeared in the suit, although later on they did not contest it, and that is a point to be taken in favour of the plaintiffs opposite party because there was no object in their suppressing summonses against this lady. They have also commented upon the fact that this lady herself has not come forward to give evidence in the Case nor has her husband been examined on the point.

Now, Mr. Murari Prasad, appearing on behalf of the petitioner, although he has referred to a number of facts has really urged two points. The first point is that the provisions of Order 26, Rule 8, Civil P.C., not having been observed by the Court which was dealing with this application, under Order 9, Rule 13 the evidence of the peon should not have been taken into account, and for this he relies upon the decisions in Jnanada Sundari Roy v. Pramada Sundari Roy AIR 1984 Cal 116, Krista Kishore Bose Vs. Pancharam Maity, and Mahim Chandra Guha Vs. Naba Chandra Chowdhury and Others, . Now, looking at Order 26, Rule 8,

1 am afraid this contention raised by Mr. Murari Prasad cannot stand. The rule provides:

Evidence taken under a commission shall not be read as evidence in the suit without the consent of the patty against whom the same is offered, unless (a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is ''a person in the service of the Grown'' who cannot, in the opinion of the Court, attend without detriment to the public service....

In this Case the commission was issued on the ground that the peon was sick. Therefore the present case comes within the exception referred to in Clause (a), and this point must fail. The other point that was urged by Mr. Murari Prasad is that on the evidence of the peon himself no proper service under Order 5, Rule 17 can be held to have been made in the circumstances of the Case. The peon''s report has been summarized by the lower Appellate Court. It was to the effect that summons was sent to the applicant through a maid-servant.

That maid-servant, I find, has not been examined in this case, and we do not know how the peon complied with that part of the Rule which says that

where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, 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 annexed thereto....

The only person through whom the peon could know that the summonses were not accepted by the lady was the maid-servant and her evidence is not available.

There is nothing from which it can be held that the defendant refused to sign the acknowledgment and if that condition is not satisfied then the stage for the serving officer to "affix a copy of the summons on the outer door or some other conspicuous part of the house" had not arrived. In this view of the matter I am supported by the decision in Sakharam Bhaskar v. Padmakar Mahadeo (1906) 30 Bom 623. Although it was a decision in a civil appeal the principle laid down in it is quite clear. In the present case the trial Court itself remarked that "the evidence about service is no doubt meagre, but the circumstances no doubt are in its favour."

I am satisfied that the petitioner has made out a case for setting aside the ex parte decree on account of a material irregularity which has crept in by accepting the peon''s house-service as a substitute for personal service. I therefore set aside the ex parte decree and direct that the suit be restored to its original number and be proceeded with from the stage at which the ex parte decree was passed. In the result the application is allowed but without costs.