A writ petitioner challenged an order reopening service of summons in a suit. High Court held the trial court erred by accepting service based on old process after issuing fresh summons and ordered set-aside.
Order dated 04.04.2017 set aside; ex-parte proceeding held unsustainable; petitioner given opportunity to file written statement.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010015012017
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO 8/2017
1:SHRI RANTU DAS
S/O NOWMAL DAS, R/O ARYA NAGAR, BEHIND ARYA VIDYAPEETH COLLEGE, HOUSE NO 21, UNDER POLICE STATION BHARALUMUKH, GUWAHATI 781016 IN THE DIST. OF KAMRUP M, ASSAM.
VERSUS
1:SHRI RAJESH KUMAR GUPTA S/O LATE RAM KUMAR GUPTA, R/O DR. R.P. ROAD, DISPUR, GUWAHATI 781006 IN THE DIST. OF KAMRUP M, ASSAM.
Advocate for the Petitioner : MS.B DAS
Advocate for the Respondent : MR.K KALITA
Linked Case : CRP(I/O) 59/2017
1:RANTU DAS S/O LT. NOWMAL CH. DAS R/O ARYA NAGAR HOUSE NO. 21 BEHIND ARYA VIDYAPEETH COLLEGE GUWAHATI - 781016 IN THE DIST. OF KAMRUP METRO ASSAM
VERSUS
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1:RAJESH KUMAR GUPTA and 5 ORS. S/O LT. RAM KUMAR GUPTA R/O DR. R.P. ROAD DISUR GU WAHATI- 781006 IN THE DIST. OF KAMRUP METRO ASSAM 2:MANJULA KALITA W/O SRI SADHAN KALITA PROPRIETRESS OF M/S MANJULA BUSINESS CONSORTIUM HAVING ITS PRINCIPAL OFFICE AT PANORAMA APARTMENT CHANDMARI FLY OVER ROAD GUWAHATI - 781003 IN THE DIST. OF KAMRUP METRO ASSAM 3:SMT. DOLLY CHAUDHURY W/O MR. RIASAT ALI CHAUDHURY 4:MR. RIZUL CHAUDHURY S/O MR. RIASAT ALI CHAUDHURY 5:SMT. BOBINA CHAUDHURY
6:SMT. REEMA CHAUDHURY BOTH ARE RESPONDENT NOS. 5 and 6 ARE DAUGHTERS OF MR. RIASAT ALI ALL THE ABOVE NAMED RESPONDENT NOS. 3 TO 6 ARE RESIDENT OF TAJI COMMERCIAL COMPLEX SATI JIAMATI ROAD ATHGAON P.S. BHARALUMUKH GUWAHATI -1 IN THE DIS.T OF KAMRUP METRO ASSAM
Advocate for the Petitioner : MS.N UPADHYAY Advocate for the Respondent : MS K KALITA R-1
BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA
JUDGMENT
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Date : 07-06-2018
Heard Mr. D. Baruah, learned counsel for the petitioner as well as Mr. S.J. Sarma, learned counsel for the respondent. None appears on call for the proforma respondents No.3 to 6 although notices have been duly served upon them.
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submitted that the process server had given his report to the effect that the said Deepa Das who had received the process was a “ghorort rakha suwali”, which in roughly translated English would mean “girl kept at house”. It is submitted that the said term is normally for a household servant and such servant cannot be called as a member of the household. By referring to the provisions of Order V Rule 15 CPC, the learned counsel for the petitioner places reliance on the explanation appended thereto to the effect that a servant is not a member of the family. It is further submitted that as fresh process was issued by the learned trial Court by order dated 04.09.2014, the learned trial Court was precluded from taking cognizance of service made by the previous process issued on 11.08.2014 and in this connection by referring to the said acknowledgment card, it is submitted that the next date of the case was written as 04.09.2014 and that the post office seal was bearing a date of 10.09.2014. By this, it is projected that the said A/D card would have been returned back to the Court on or after 10.09.2014 which is after the date fixed for appearance. While placing reliance on the following 3 cases:-
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jurisdictional error and the same be set aside.
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“not yet received by defendant No.6” and therefore, direction was issued to the respondent No.1 to take fresh steps on the petitioner. Therefore, this is a case where the learned trial Court had bye-passed its own order dated 04.09.2014, whereby fresh summons was issued upon the petitioner and took cognizance of the service made on Deepa Das on the basis of the previous process issued on 11.08.2014. This Court in the case of M/S Plethico Pharmaceutical Ltd (supra) has held the same to be clearly impermissible. The said finding of this Court appears to be a trite law on the matter. It is further seen from the process server’s report submitted in connection with Misc.(J) Case No.168/16 that Deepa Das was not a member of the household or family and the explanation to Order V Rule XV CPC excludes a servant to be the member of the family. Hence, it was incumbent on part of the learned trial Court to record its satisfaction that the process was duly served on the member of the family. As it is found that the learned trial Court had not recorded its satisfaction about the process being served on (1) the petitioner, (2) the agents, (3) adult member of the family, the presumption of due service of summons on the petitioner is not sustainable. The service of Deepa Das under the previous process when the learned trial Court had recorded in the order dated 04.09.2014 that the summons were not served on the petitioner, such service of process after the date of appearance had lapsed amounts to “no service of summons/ process on the petitioner.”
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cognizance of service of summons based on the previous process issued on 11.08.2014 when a fresh process was directed by order dated 04.09.2014 as stated above is held to be “no service” on the petitioner and therefore, having failed to note the same the learned trial Court had committed jurisdictional error as the acceptance of service of process on the petitioner itself was without jurisdiction because a fresh summons was directed to be issued by order dated 04.09.2014. Therefore, it was incumbent on the part of the learned trial Court to record satisfaction of service of summons only on the basis of process issued pursuant to the passing of the order dated 04.09.2014. Consequently, the order dated 04.04.2017 in Misc.(J) Case No.334/16 is also set aside.
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JUDGE
Comparing Assistant
2 issues framed by the court
Whether the High Court can interfere under Article 227 with the order allowing ex-parte proceedings against the petitioner after finding service was defective due to discrepancy in process issuance da
Whether a person received as a servant within the house can be validly accepted as a family member for valid service of summons under Order V Rule 15 CPC.
Colour shows how this judgement treated each authority
Sushil Kumar Sabharwal Vs. Gurpeet Singh and othersReferred¶27
Sushil Kumar Sabharwal Vs. Gurpeet Singh and others, (2002) 5 SCC 377 · Who else cites this
Nahar Enterprises Vs Hyderabad Allwyn Ltd. and anotherReferred¶27
Nahar Enterprises Vs Hyderabad Allwyn Ltd. and another, (2007) 9 SCC 466 · Who else cites this
M/S Plethico Pharmaceuticals Ltd. Vs. M/S Zenith Drugs and Allied Agencies Pvt. Ltd.Distinguished¶30
M/S Plethico Pharmaceuticals Ltd. Vs. M/S Zenith Drugs and Allied Agencies Pvt. Ltd., FAO 26/2015
4 provisions across 2 enactments
Rantu Das
Rajesh Kumar Gupta
Kalyan Rai Surana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
