Vijay Bhushan Choudhary vs Shiv Charan Dass Sharma

This Civil Revision is directed against order dated 24.11.2004 of learned 2nd Additional District Judge, Jammu, whereby he has dismissed an

application dated 11.11.2003 of the petitioner by which he had sought, permission to enter appearance in the suit filed by respondent under Order

37 of the Code of Civil Procedure.

Sh. L. K. Sharma, learned counsel appearing for petitioner/defendant, has contended that the service of summons on the petitioner is not in

accordance with Order 5 Rule 17 of the Code of Civil Procedure and as such no valid service of summons can be said to have been effected on

the petitioner. He has further submitted that the endorsement on the reverse of the summons made by the Process Server cannot be relied upon

because the Process Server had not affixed a copy of the summons on the premises where he is alleged to have found the defendant. He has

further submitted that the Process Server has not made endorsement as to in whose presence the summons was served on the petitioner.

Sh. B. M. Gupta, .learned counsel appearing for respondent/plaintiff, submits that omission to affix a copy of summons on the premises of the

petitioner/defendant is a mere irregularity and should not come in the way of the Court in treating the petitioner/defendant to have been validly

served with summons.

I have considered the submissions made by learned counsel for the parties.

Order 3 7 of the Code of Civil Procedure Svt. 1977 is a complete Code in itself which deals with special types of suits and prescribes special

procedure. The plaintiff and the defendant are required to follow the procedure prescribed in the Order strictly. Non compliance entails the

consequence, which affect the rights and liabilities of the parties.

Limitation for causing appearance in pursuance of service of summons too is prescribed in Order 37 of the Code of Civil Procedure. Service of

summons in suits is governed by Order 5 of the Code of Civil Procedure.

Keeping in view the special procedure prescribed under Order 37 of the Code of Civil Procedure and the stringent provision resulting in decree

in the suit in case of non appearance within the stipulated period prescribed by Order 37, I am of the opinion that due observance of the provisions

of Order 5 of the Code of Civil Procedure, particularly when the service of summons is alleged by the plaintiff to have been refused by the

defendant, would be mandatory.

In view of the stringent provisions of Order 37, I am unable to agree with Sh. B. M. Gupta, learned counsel appearing for respondent/ plaintiff,

that the non affixing of summons of the premises of the petitioner would be a mere irregularity.

In my considered opinion, non observance of the provisions of Order 5 Rule 17 of the Code of Civil Procedure would render the service

invalid.

In the present case, the Process Server while effecting service of summons on the petitioner has not recorded in his report that the

petitioner/defendant was apprised about the nature of the suit. The Process Server has also not recorded in his endorsement as to in whose

presence the summons was served on the petitioner/ defendant. Order 5 Rule 17 of the C.P.C. mandates that when summons is refused by the

defendant in a suit, the Process Server shall affix a copy of summons on the outer door or some other conspicuous part of the house in which the

petitioner/defendant ordinarily resides or carries on his business or personally works for gain. The Process Server is required to affix the copy of

the summons on the outer door of the premises. He is further required to mention in the endorsement the name of the person, if any, by whom the

defendant is identified and in whose presence copy of summons was so affixed.

The Process Server in the present case has not made any such endorsement as is referred in Order 5 Rule 17 of the CPC.

The petitioner has made a specific averment in his application that he was not served with summons and the same was not accompanied with a

copy of the plaint.

Learned Trial Court has not taken into consideration the rigour of Order 37 of the Code of Civil Procedure and the provisions of Order 5 Rule

17 of the Code of Civil Procedure. Learned Trial Court has further erred in commenting upon the proposed defence of the petitioner while

deciding the application of the petitioner whereby he had only sought permission to enter appearance. The discussion of the Trial Court on the

merits of the case of the defendant/ petitioner is irrelevant. The only thing which the Trial Court was required to see was as to whether or not the

petitioner/defendant was entitled to enter appearance in the suit and whether there was proper service of summons on the petitioner/defendant.

Learned Trial Court has omitted to address itself to this question.

I am, therefore, left with no option but to set aside order dated 24.11.2004 of learned 2nd Additional District Judge, Jammu. The order

impugned in the petition is, therefore, set aside. Consequently, the application of the petitioner for entering appearance in the suit is allowed. The

petitioner/defendant shall be deemed to have entered appearance on 18.10.2005. The plaintiff/ respondent is left free to exercise his right

contemplated by Order 37 Rule 3 of the Code of Civil Procedure pursuant to the appearance by the petitioner.

This petition is, accordingly, allowed without any order as to costs. Records of the Trial Court be remitted forthwith.