Yad Ram and Others vs Capt. Ram Avtar

Swatanter Kumar, J.—CM. No. 2378/CII/97 and CM. 8881/CII/97 were listed for hearing before this Court. The earlier CM is for grant of interim stay in relation to the proceedings pending before the learned trial Court, while the latter CM. relates to the extension of stay order already granted vide order dated 28.2.1997. On the consent of the learned counsel for the parties, revision petition itself was also heard on merits and order reserved.

At the very outset learned counsel appearing for the respondent raised preliminary objections that the revision petition itself is not maintainable, as proper remedy for the petitioners is to prefer an appeal before the Court of competent jurisdiction. He further contended that in consonance with the principles enunciated in the case of Purohit Swarupnarain v. Gopinath and Anr. AIR 1953 Raj 137 and Mangalsingh Vs. Sagarmal and Others, , the petitioners herein can impugn and raise controversy in relation to the impugned order at the time of filing of the appeal, as such revision u/s 115 of the CPC was also not maintainable. Reacting to the above contention, the learned counsel for the petitioners contended that no proper service had been effected upon the applicant and in fact the summons and munadi were effected on a wrong address in a different village. He further contended that no notice by registered post was sent in terms of the order of the Court and as such the applicant could not have been proceeded against ex parte (Order 9 Rule 4 C.P.C) vide order dated 9.1.1994 and resultantly the impugned order dated 9.10.1996 is liable to be set aside, as learned Court has failed to exercise its jurisdiction lawfully vested in it.

The facts giving rise to the present revision petition are that the plaintiff Capt. Ram Avtar had filed a suit for possession by way of specific performance of the agreement dated 10.6.1992 in relation to the land forming subject matter of the present suit. In the said suit, summons were ordered to be sent to the defendant. Thereafter, the Court had probably passed the order for effecting service by substituted method by way of proclamation in the village. As per the report on the summons, the defendant was served by proclamation and consequently, defendant was ordered to be proceeded against ex parte in the proceedings in the suit vide order dated 1.9.1994. The defendant-applicant having come to know of the proceedings, subsequently filed an application for setting aside the order dated 1.9.1994 ordering ex parte proceedings against her and prayed for relief to allow her to participate in the suit in accordance with the application and declined to allow the said application for the reasons stated in the order dated 9.10.1996, which has been impugned in the present revision petition.

Before discussing the merits of this application, it will be appropriate for this Court to deliberate on two legal issues raised on behalf of the respondent in this petition. The first contention raised on behalf of the respondent in any case is devoid of any merit and is contrary to the specific provisions of CPC and Order 43 Rule 1 of the CPC which deals with the orders which are appealable and an order directing the ex parte proceedings against the defendant in a suit or dismissal of an application" for setting aside the ex parte order within the purview and scope of Order 9 Rule 7 of the Code of Civil Procedure. Any order passed under Order 9 Rule 7 CPC is certainly not appealable under the provisions of Order 43 Rule 1 CPC. As such I am unable to agree to the view that the proper remedy for the petitioners was to file a regular appeal before the Court of competent jurisdiction and not this revision petition. The next objection in relation to non-maintainability of the revision under the provisions of Section 106 of the CPC as a result of the spirit behind the provisions of Section 105 of the CPC in my humble opinion is again not sustainable. At the very outset it needs to be noticed that the Hon''ble High Court of Rajasthan had taken the view expressed above before the CPC was substantially amended by the Amended Act of 1976. Substantial amendments have been made in pertinent provisions of the Code of Civil Procedure. These amendments have the effect of altering the entire scheme underlying the provisions of the Code. Section 115 of the Code itself was subjected to considerable change and the scope of amended Section 115 of the Code is capable of being given distinct and different interpretation than the interpretation which the said provision was capable prior to the date of amendment. The provisions of Section 115 of the Code now read as under:-

"115. Revision.- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity the High Court may make such order in the case as it thinks fit:

(Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.)

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Explanation.- In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceedings."

Under the first proviso to Section 1 of Section 115 of the Code, the High Court has the power even to vary or reverse or modify the order passed in the course of the suit on the ground covered under sub-section 1 (a, b, c) and especially where there is likelihood of failure of justice or a party suffering an irreparable injury if such order is not set aside. The Legislation in its wisdom has extended the scope of revisional jurisdiction of the High Court exercisable by the High Court. If the absolute proposition put forward by the learned counsel for the petitioners is accepted, it would totally frustrate the very Legislative intend behind the provisions of Section 115 of the Code. When the law vests the jurisdiction in Court, the common view is that the Court is supposed to exercise such jurisdiction within the limitation provided in the statute itself. It could be nowhere a fair interpretation of law that a power vested by one provision of the Code should be frustrated in its entirety by giving a stretched interpretation to another provision of the same Code. Section 105 of the Code is to be read in conjunction with the provision of Order 43 Rule 1 of the Code of Civil Procedure. As already noticed, appeals from the orders which are passed during the course of suit are controlled by Order 43 Rule 1 of the Code of Civil Procedure. Provision of Section 105 of the CPC intends to protect the spirit behind Order 43 Rule 1 CPC, as Section 105 opens with the words "Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal."

The obvious purpose underlining the scheme of Section 105 CPC read with Order 43 Rule 1 CPC is that the orders which are not specifically appealable should not be permitted to be appealed against and if any order suffers from an error, defect or irregularity and effects the decision of the case, that may be taken up as a ground of objection in the memorandum of appeal. To read these provisions as a bar by implication to the invocation of the exercise of revisional jurisdiction of the High Court within the scope of Section 115 of the CPC would, with greatest responsibility he, amount to destruction or decimation of the Legislative purpose behind the provisions of the Code.

It is a settled principle of law that bar to jurisdiction must be provided in the statute itself and by no uncertain terms. The various provisions of the Code must be read and construed together. The ancillary provisions of the Code must be read ejusdem generis to the substantive provisions. Ancillary provisions or dependent provisions cannot be permitted to frustrate the rights arising from other, substantive provisions of the Code. Wherein Section 105 of the CPC is to regulate and control Order 43 Rule 1 of the Code of Civil Procedure, there Section 115 of the Code is an absolute provision and is not guided or controlled by any of the provisions provided therein. In other words, no order/s of the Code deal with the revisional power of the High Court and Section 115 of the Code fully and finally governs the field. This Court had occasion to discuss the ambit and scope of the provisions of Section 115 CPC in the case of Hazara Singh and Others Vs. Bachan Singh and Others, where the Court has held as under:-

"12. It is a settled principle of law that provision of a procedural Court should be construed so as to further the ends of justice rather than to frustrate the same. Sub-section (1) of Section as it existed prior to the amendment had restricted the scope of the power exercisable by the High Court in its revisional jurisdiction. Clauses (a) to (c) of Sub-section (1) had clearly defined the limitation in nature of the cases which would be amenable to the revisional jurisdiction of the High Court. Proviso to sub-section (1) of Section 115 of the Code was introduced by CPC Amendment Act, 1976.

The legislative intention behind introducing the proviso to this sub-section appears to be to further clarify the cases which should be subject to the revisional jurisdiction of the High Court.

xx xx xx xx 14. The language of this clause must be given wide meaning and should not be interpreted so as to frustrate the very purpose of introduction of this clause. The expression, "failure of justice" or "cause irreparable injury to a party" clearly shows the legislative intention of ensuring that ends of justice must be achieved. The basic rule of law is intended to take precedence over narrow scope of interfering in orders even if they would not have the effect of finally disposing of the suit or the proceedings. The expression "or" occuring between clauses (a) to (c) of the proviso to sub-section (1) of Section 115 of the Code, obviously made the matters clear to the extent that the High Court would not interfere in the orders passed by the Courts below if the case falls in either of the clauses. In other words the High Court could interfere in the orders in revision if they fall under clause (b) of the proviso alone. Of course, the cases falling under clause (b) must again be covered under sub-clauses (a) to (c) of sub-section (1) of Section 115 of the Code.

Exercise of jurisdiction by the Courts, subject to the revisional jurisdiction of this Court, must be proper and in conformity with law. Failing to exercise the jurisdiction so vested in them, and if they act in exercise of its jurisdiction illegally or with material irregularity and this causes failure of justice or causes irreparable injury to a party against whom such an order is passed, this Court would certainly have the jurisdiction to interfere with the order in a revision even if it is not an order which has finally or has the effect of finally disposing of the suit or other proceedings.

xx xx xx xx 19. The provisions of Section 115 of the Code must be read in their entirety to really give effect to these provisions and to achieve the object underlying the basic rule of law and ends of justice. The observations made by the learned Judge in the case of Surjan Singh (supra) (1994)108 P.L.R. 503 cannot be treated as a complete bar to all cases which come before the High Court under its revisional jurisdiction merely on the strength of clause (a) to the Proviso. If that clause is read as an absolute bar to all cases, irrespective of the cases falling under clause (b) of the Proviso, then it would be a decision which will be ex-facie beyond the plain ratio of the statutes and would defeat the very purpose of the statutes itself. In the regard reference can be made to the judgment of the Hon''ble Supreme court in the case of Karnal Improvement Trust, Karnal Vs. Parkash Wanti (Smt) (Dead) and Another, ."

The provisions of the Code are enacted with an intention to do substantial justice between the parties and to ensure effective and fair procedure in conclusion of the suits. The construction of procedure which would end in frustration of the remedy prescribed to meet the ends of justice, should be avoided. To further the cause of justice, is the basic object of various provisions of the Code. The Hon''ble Supreme Court of India in the case of Harcharan Vs. State of Haryana, affirmed this view.

With respect and all the humility at any command, I am unable to persuade myself to follow the view taken by the Hon''ble Judges of the Rajasthan High Court, for the reasons aforestated. I am unable, to agree to the view that the present revision petition is not maintainable and hold that objection taken by the respondent in regard to maintainability of the revision petition is not sustainable.

Coming to the merits of the case, in the impugned order, the learned Judge has not even noticed whether the order dated 1.9.1994 had been passed in accordance with the provisions of Order 5, Rule 9, 10, 19 19-A and 20 of the Code of Civil Procedure. What the learned trial Court has noticed is that "Perusal of the reports on summons reveal that the defendant was served by way of proclamation in the village. It is true that an ex pate order should not be mechanically set aside and it would be abuse of process of law.

Learned counsel for the petitioners pointed out two patent defects i.e. firstly the summons were addressed to the defendant at village Meerpur, while the defendant was resident of village Neerpur, Tehsil Narual. Secondly, registered covers were not sent in compliance with the orders of the Court. I find merits in both these submissions. Even in the application, which has been filed for setting aside the ex parte order dated 1.9.1994, the applicant has given her address at the end of the application as resident of village Neerpur, Tehsil Narnaul. In the reply filed to the application, the plaintiff/non applicant has no where stated that the address given by the defendant/applicant is incorrect. The plaintiff also furnished no proof to show that defendant was resident of village Meerpur. Another document has been produced in the Court, which is a certificate issued by the Panches and Sarpanch of village Neerpur, stating therein that no munadi was effected in village Neerpur on 15.8.1994, of which Sundri-defendant was the resident. These averments and facts clearly doubt the legality and validity of the proclamation alleged to have been effected in the village and the manner in which service is stated to have been effected upon the defendant.

The court had directed the plaintiff to furnish the registered covers for service on the defendant, which were not furnished. Once the court directs service to be effected by registered covers, it is obligatory upon a party to comply with the order. Defaulting party cannot take any advantage of its own default. Order 5 Rule 9 CPC requires "summons should be delivered for service. It must be served by a specified person of the Court in this behalf and has to be tendered to the person where he resides." Rule 10 requires that such summons must be under the seal and signatures of the Court. Order 5 Rule 17 requires that service be effected by affixation if the defendant refuses to accept the service or cannot be found. Recourse to substituted service under Order 5 Rule 20 CPC can be taken only if the Court is satisfied that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. Perusal of these provisions clearly show that substituted service itself cannot be ordered in a mechanical manner. It pre-supposes some application of mind and looking into the records by the Court concerned. Where the Court provides substituted method of service to avoid delay and save the interest of the plaintiff, there it also grants protection to the defendant by incorporation of such provisions. At this stage, it will be relevant to refer to Rule 19-A of Order 5 CPC and the same reads as under:-

"19A. Simultaneous issue of summons for service by post in addition to personal service.- (1) The Court shall, in addition to, and simultaneous with, the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or caries on business or personally works for gain:

Provided 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.

(2) When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court'' issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for other reason, has not been received by the Court within thirty days from the date of the issue of the summons."

The provisions of Rule 19A CPC makes it obligatory upon the Court to order simultaneous issue summons for service as provided under Rules 9 to 19 of Order 5 of the CPC to direct service by registered post. Where the Court does not consider it necessary not to pass such a direction, the Court has been vested with such power under the proviso to this rule. One pertinent factor that emerges from the above discussion and of Rule 19A is that the summons must be properly addressed on a correct address of the defendant.

Where the valid service is effected upon the defendant in normal course it will be in the discretion of the Court to direct issuance of summons by registered post, acknowledgement due or not. Where service in the normal course is effected and no prejudice is shown to have been suffered by the applicant, non-compliance to the provisions of Rule 19A of the Code unnecessarily would not invalidate the service. Reference can be made to the judgment of this Court in the case of The Punjab State Cooperative Bank Ltd. and Another Vs. Shri Baldev Krishan, .

In order to create a balance between the rights and obligations of the respective parties to the suit under the provisions of Order 25 of the Code of Civil Procedure, I would consider it appropriate that before directing the service to be effected by substituted method, the court should normally direct issuance of summons in compliance with the provisions of Order 5 Rule 19A of the Code unless the Court finds sufficient reasons falling within the limited ambit of proviso to Rule 19A (1) of the Code.

In the present case, summons were sent at the wrong address, summons were not sent by registered post, acknowledgement due, despite order of the Court and even the proclamation was effected in a village where the defendant was not residing. All these defaults on the part of the plaintiff in the suit has certainly caused serious prejudice to the rights of the defendant. The present suit is a suit for specific performance of an immovable property and to grant leave to the plaintiff to raise this plea upon passing of the final decree would neither be equitable nor just. In fact it would tantamount causing an irreparable injury to the applicant and would occasion failure of justice to the defendant in the suit.

For the reasons aforestated, I have no hesitation in setting aside the order dated 9.10.1996. The learned trial Court has failed to exercise the jurisdiction which is lawfully vested in it to avoid injustice to the parties. The Court has not examined the records before it and thus, fallen in an error apparent on the face of the record. Thus, I set aside the order dated 9.10.1996. Allow the application of the defendant-applicant for setting aside the order dated 1.9.1994 directing ex parte proceedings against her. The defendant shall file written statement within four weeks from today. There will be no order as to costs.

Revision petition stands allowed accordingly.