Sukhdev Singh and Another vs Santosh Singh and Another

D.V. Sehgal, J.—This revision petition is directed against the judgment dated 9th May, 1986 passed by the ld. Additional District Judge, Gurdaspur in appeal whereby the order dated 15th Nov. 1985 passed by the ld. Additional Senior Sub Judge, Batala, was, upheld and the appeal of the Defendant Petitioners was dismissed.

Santokh Singh Respondent No. 1 filed a suit against the Petitioners on 25th May, 1980 in the Court of the ld. Sub Judge, Batala, for specific performance of a contract against the Petitioners. Summons of the suit was issued for service of the Petitioners. The report on the process made by Process Server was that they had refused service. The ld. Sub Judge, therefore, vide his order dated 16th Oct. 1980 directed substituted service to be effected on them through munadi and by publication of notice in the Daily Ranjit, Patiala, for 10th Nov., 1980. Munadi was duly effected and publication of the notice in the Daily Ranjit also took place in its issue dated 5th Nov., 1980. As no one appeared on behalf of the Petitioners before the Court on 10th Nov., 1980, they were proceeded against ex-parte. The suit was posted for ex-parte evidence for 5th Dec, 1980 and ultimately on the basis of the ex-parte evidence decree dated 4th Sept., 1981 was passed in favour of Respondent No. 1 and against the Petitioners.

The Petitioners filed an application on 27th Mar. 1982 for setting aside the aforesaid ex-parte decree by stating that they had never been served with any summons either by the Process Server or through registered post and that they were never aware of the institution or pendency of the suit against them. It was, however, averred therein that they had got the knowledge of the ex-parte decree only a day prior to the filing of the application and as such the same was within time. The application was opposed by Respondent No. 1 who pleaded that the Petitioners had intentionally refused service. They were, therefore, validly served by substituted service. They had knowledge of the pendency of the suit and the ex-parte decree and that the application was barred by time.

On the pleadings of the parties, the ld. trial Court framed the following issues:

(1) Whether the application is within limitation? OPA

(2) Whether there is any valid ground for setting aside the ex-parte decree? OPA.

Both these issues were decided against the Petitioners and the ld. trial Court dismissed their application by order dated 15th Nov., 1985 which was affirmed in appeal by the ld. Additional District Judge vide his judgment under revision.

I have heard the ld. Counsel for the parties and have also perused the record. The ld. Counsel for the Petitioners has contended that vide its order dated 4th Aug, 1980 the ld. Sub Judge while directing issuance of summons of the suit to the Petitioners had also ordered that summons should be served on them through registered post. A perusal of the file, however, shows that Respondent No. 1 did not comply with the latter part of the order. He did not deposit the registered postal covers and summons were not issued to the Petitioners by registered post acknowledgement due. He contends that Order 5, Rule 19-A, CPC (for short ''the Code'') now contains a mandatory provision that in addition to and simultaneously with, the issue of summons in the ordinary manner the Court shall direct the summons to be served on the Defendant by registered post acknowledgement due. He, therefore, submits that because of non-compliance of this mandatory provision, there was no valid service on the Petitioners. This contention has been sought to be emphatically countered on behalf of Respondent No. 1. It has been contended by his ld. Counsel that non-issuance of summons to the Petitioners through registered post in pursuance of the order dated 4th Aug., 1981 and consequently non-compliance with Rule 19-A ibid is at the most an irregularity in the service of summons. The second proviso to Rule 13 of the Order IX, of the Code, now lays down 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. In support of this submission he has placed reliance on Risaldar Pakhar Singh and Ors. v. Bhajan Singh and Ors. AIR 1987 P&H 178. He further submits that since the Petitioners had refused to accept service of summons issued to them in the ordinary manner, they are to be deemed to have knowledge of the proceedings. For this submission, he relied on Har Charan Singh v. Shiv Ram and Ors. AIR 1981 SC 1284. He further submits that substituted service on the Petitioners by Munadi and by publication of notice in the Daily Ranjit is as effectual as if it had been made on the Defendant personally as laid down in Rule 20(2) of Order 5 of the Code.

I have considered the rival contentions of the ld. Counsel and am of the view that this revision petition ought to be allowed. Rule 19-A in Order 5 of the First Schedule to the Code has been inserted by the CPC (Amendment) Act, 1976. The objects and reasons for insertion of this Rule as contained in Clause 55(iii) of the Joint Committee Report are as under:

The Committee are of the view that in order to establish that the summons has been duly served on the Defendant, the simultaneous issue of summons, for service by post should be done by registered post acknowledgement due. Sub-rule (1) of the proposed new Rule 19-A has been amended accordingly.

Proviso to Rule 19-A(1) lays down that nothing in this Sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.

Had there been no specific order of the Court for issue of summons by registered post to the Petitioners, it might have been reasonable t� conclude while adjudicating on the application under Order 9, Rule 13 of the Code, that the Court considered it unnecessary to issue summons for service on the Petitioners by registered post and non-compliance with the mandatory provision of Rule 19-A ibid was an irregularity within the meaning of the second proviso to Rs. 13 of Order 9 of the Code, but the Court having made specific order dated 4th Aug., 1980 for issue of summons to the Petitioners by registered post also non-compliance with this order by Respondent No. 1 cannot be considered to be a mere irregularity.

No doubt Respondent No. 1 in support of the report of the Process! Server recording refusal of service of summons by the Petitioners produced the Process Server as RW 2 and also examined Hazara Singh Lambardar as RW1, the witness to the report, besides his own statement, but the fact that Respondent No. 1 did not deposit registered postal covers for service of the Petitioners in accordance with Rule 19-A ibid casts doubt on his bona fide and it appears that he was keen to obtain an ex-parte decree. It has been held in Nasib Singh v. Jagdish Chand 1980 PLR 729, that to put a safeguard against connivance between the Plaintiff and the process server, the Legislature has made it incumbent under Rule 19-A ibid to issue summons by registered post as well. Both the modes prescribed for service, i.e. ordinary process as also service by registered post, have to be resorted to.

In my view, the ratio of Risaldar Pakhar Singh''s case (supra), relied, on by the ld. Counsel for Respondent No. 1 has no application to the facts of the present case. In that case copy of the plaint was not accompanied by the summons sought to be served on the Defendant. It was held that once the summons is served on the Defendant he gains knowledge of the proceedings of the suit and if in response to the same he does not put in appearance he cannot take shelter under the plea that the copy of the plaint has riot been supplied to him, On this ground alone an ex-parte decree is not to be set aside. The second proviso to Rs. 13 of Order 9 of the Code shall be attracted in such a case as non-supply of the copy of the plaint would be an irregularity covered by the said proviso.

Since no valid service of summons was effected on the petitipner, the substituted service ordered by the Court under Order 5, Rule 20 of the Code, was not valid as their could not be any valid satisfaction of the Court that the Defendant could not be served in the ordinary way. The substituted service by publication in the Daily Ranjit, Patiala, was hardly of any help as this newspaper has little or no circulation in the district of Gurdaspur and particularly in the rural area Where the Petitioners reside. There is no satisfactory evidence on the record that munadi was effected in the village, I have, therefore, no reason to disbelieve the version of the Petitioners that they did not have the knowledge of the pendency of the suit or of the ex-parte decree. In these circumstances, the application is to be considered to be with in time.

Consequently, I allow this revision petition and set aside the order of the ld. trial Court and the judgment of the ld. Additional District Judge in appeal. I allow the application under Order 9, Rule 13 of the Code filed by the Petitioners and set aside the ex-parte decree dated 4th Sept., 1981. There shall, however, be no order as to costs.

The parties through their counsel are directed to appear before the ld. trial Court on 17th Aug., 1987 when the Petitioners shall put in appearance in the suit as Defendants and on their entering upon defence further proceedings shall be taken by the trial Court in accordance with law.