Allowed

Prem Singh and Ors. v. Bal Kishan and Ors.

Punjab & Haryana HC15 Sept 2014CR/4660/2003

Case brief

AI extract

What is this about?

This revision petition challenged orders dismissing applications to set aside an ex parte decree and an appeal. The High Court set aside the impugned orders as they were passed without satisfying itself regarding statutory compliance for substituted service, dismissing unsigned process server reports and directing the trial court to decide the suit on merits.

What did the court decide?

The impugned orders dated 03.04.2001 and 18.08.2003 were set aside. The application for setting aside the ex parte decree was accepted, and the trial court was directed to register the suit and decide

Prem Singh and Ors. Vs Bal Kishan and Ors. — Property and Title | Punjab & Haryana HC (2014)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.4660 of 2003 Date of decision: September 15, 2014

Prem Singh

...Petitioner

Versus

Bal Kishan and others

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...Respondents

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CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH

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Present: Mr.R.L.Sharma, Advocate for the petitioner.

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Mr.N.L.Sammi, Advocate for the respondents.

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INDERJIT SINGH, J.

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Petitioner Prem Singh has filed this revision petition against Bal Kishan and other respondents under Section 115 CPC India for setting aside the impugned order dated 03.04.2001 passed by learned Addl. Civil Judge (Senior Division), Rajpura whereby the application for setting aside the ex parte judgment and decree dated 05.06.1991 has been dismissed and also for setting aside the judgment dated 18.08.2003 passed by learned Addl. District Judge (Adhoc) Fast Track Court, Patiala whereby the appeal filed by the petitioner has also been dismissed.

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The brief facts of the case are that ex parte decree, obtained by plaintiffs/respondents dated 05.06.1991 against Gurdev Singh deceased, who died on 08.07.1991 was challenged by the VINEET GULATI 2014.10.10 16:26 I attest to the accuracy and authenticity of this document Chandigarh

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petitioner through his legal representative. It is stated that Gurdev Singh (deceased) was never served in the suit according to law. Gurdev Singh was permanent resident of village Naraina, Tehsil Rajpura where no summons were issued nor he was ever served and he had no residential address as given in the plaint. The address of Gurdev Singh as given in the plaint i.e. Gurdev Singh S/o Kartar Singh, Bypass near Manohar Hotel, Rajpura is vague and unspecific. It is further stated that the refusal of service by Gurdev Singh as reported by Prithi Chand Process Server dated 19.03.1989 is only regarding the injunction order issued on 13.03.1989 by the Court. Even that refusal report is illegal and against the law. There is no signature of any witness on the alleged report of refusal. Moreover, the alleged report only say that he had gone to serve the summons of the injunction order on the address given in the plaint. The report of the Process Server dated 19.03.1989 is reproduced as under:-

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“Sir,

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It is stated that in accordance with the order I had gone at the given address for service upon Gurdev Singh. He was asked to accept the service but he refused to receive the same. One copy of the injunction order has been pasted at his house. Therefore, the report is submitted.”

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It is stated in the revision petition that order of the Court dated 14.06.1990 ordering to proceed ex parte does not mention that the Court was satisfied that the defendant could not be served in ordinary method and only could be served through substituted service.

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The revision petition was admitted. Notice of motion was issued in this case and respondents appeared through their counsel

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and contested the petition.

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I have heard learned counsel for the parties and have gone through the record.

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From the record, I find that LRs of Gurdev Singh filed application for setting aside the judgment and decree dated 05.06.1991 passed by learned Sub Judge First Class, Rajpura in civil suit titled as 'Hans Raj vs. Gurdev Singh'. Notice of the application was given and plaintiff appeared through his counsel and contested the application primarily on the ground that service was only effected on the defendant and he was rightly proceeded against ex parte . It is also stated that the application is not within time. To substantiate their claim, defendants examined AW-1 Harbans Singh, one of the legal heirs of Gurdev Singh and he stated that Gurdev Singh was his uncle. Gurdev Singh used to live at Village Naraina with him. He had no issue as his wife had already expired. He never lived at Rajpura and he died at village Naraina. He also deposed that Gurdev Singh has executed Will in their favour and he was residing with him at the time of his death. Decree dated 05.06.1991 was not in their knowledge. He came to know in the month of December 1993 as Patwari told him about the decree. After obtaining the copy of the decree, he filed the instant application. Manjit Singh appeared as AW-2 and also deposed the same facts as deposed by Harbans Singh AW-1. In defence, Subhash Chand appeared as AW-1 and stated that he was in the knowledge of present suit filed by his father. He was accompanying his father on some of the dates. He further deposed that Process

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Server had gone to the house of Gurdev Singh for effecting service upon him. Gurdev Singh intentionally evaded the service. Munadi was effected in the locality near their house and summons were affixed at his residence. Gurdev Singh did not come present in the case intentionally.

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Learned Addl. Civil Judge (Senior Division) Rajpura, after hearing counsel for the parties and after going through the record, dismissed this application by mainly holding that since Gurdev Singh refused to accept summons, he was ordered to be served by way of substituted service i.e. munadi and affixation of summons on the part of his house, which were duly effected. The Court relied upon the report of the Process Server. It is also stated that applicants have not placed document to show that they are legal heirs neither Will nor death certificate of Gurdev Singh have been placed on the record.

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Learned Addl. District Judge, Patiala also held that the defendant has refused to accept the summons and on his refusal copy of the plaint has been affixed at his residential house. Learned Addl. District Judge also held that the address of Gurdev Singh has been mentioned in the agreement to sell and he was served on the same address and dismissed the appeal vide judgment dated 18.08.2003.

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The perusal of the record shows that in the present case the applicants are alleging themselves to be LRs of Gurdev Singh and saying on oath that they are LRs and Gurdev Singh had died issueless as his wife had already died. There is nothing on the record

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to show that this fact has been contested by the defendant that Gurdev Singh has not died or the applicants are not the LRs. Secondly, it is in the order that there is entry in the remarks column in Jamabandi for the year 1986-87. Learned counsel for the petitioner, at the time of arguments, argued that presumption of truth attaches to the jamabandi as there is entry regarding mutation in favour of applicants regarding inheritance of Gurdev Singh. Therefore, in view of the entries in the jamabandi in the name of applicants, prima facie they have locus standi to file the application for setting aside the ex parte decree being LRs of Gurdev Singh.

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Secondly, I find that applicants have reproduced the report of Process Server in the petition. As per this report, Gurdev Singh has refused to accept the service on the application under Order 39 Rule 1 and 2 CPC. As per report, one copy of the injunction order has been pasted at his house. Otherwise also, to prove this report that Gurdev Singh has refused to receive the summons, no Process Server has been examined by the respondent. It was for the respondent to bring the Process Server in the witness box to prove the report of refusal. As per counsel for the revision petitioner, nobody has signed on the report as witness that Gurdev Singh has refused service. There is also nothing in the report that Process Server was knowing Gurdev Singh and he refused to accept summons.

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Therefore, in my view this report of Process Server regarding refusal of Gurdev Singh on the summons, has not been proved by the respondents. Secondly, there is nothing on the record

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to show that any copy of plaint has been affixed or given to Gurdev Singh. Rather, as per report of Process Server dated 19.03.1989, copy of the injunction order has been pasted at the house of Gurdev Singh. Otherwise also, it is the case of the applicants that Gurdev Singh died at village Naraina and he was residing there. There is no cogent evidence brought by the respondents to show that Gurdev Singh was residing at the address where the Process Server has gone and has made report of refusal. Otherwise also, it is settled law that rights of the parties should be determined on merits as far as possible and Court should not go into the technicalities of law. The law of procedure is made to help the substantial justice and cannot be allowed to come in the way of doing substantial justice.

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Learned counsel for the petitioner has cited judgment

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passed by this Court in Ajit Singh vs. Santokh Singh and others, 2002(1) PLJ 90 , in which it is held as under:-

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“5. It is clear from the above report of the process server that it is not in accordance with law. The process server was required to make a report in accordance with law and it ought to be witnessed by an independent person. The bare reading of the report shows that it was witnessed by one Smt. Sukhminder Kaur who is stated to be the wife of Santokh Singh, the plaintiff in the suit. It cannot be reasonably comprehended that the service upon the deceased was properly effected and he had actually refused to accept the summons/notice. The address as given is of the village and surely in the entire village the process server could at least find a single independent witness, whether man or woman, except the wife of the plaintiff himself.

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From the judgments of the learned Courts below it appears that this pertinent fact escaped their notice.

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6. Merely because a date of knowledge was not specifically mentioned in the application the learned Courts could not have drawn a presumption against the

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applicant. Another factor which cannot be ignored by the Court is that Gurbachan Singh had admittedly died before the evidence on the application could begin. The Court has to satisfy itself in regard to the ''refusal" report recorded by the process server before directing ex parte proceedings to be taken against such a party. Such care and caution is implicit in the procedure prescribed under the Code and in any case would be proper to meet the ends of justice. The present suit related to transfer of an immovable property based on an alleged agreement and in ordinary circumstances the Court has to see normal conduct of a party to the lis. No prudent person in normal course would like to ignore Court proceedings in relation to any immovable property as it could have serious consequences like dispossession of such person from the property and its transfer in favour of the plaintiff.

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7. The records of the trial Court further reveal that even summons sent through registered acknowledgment due do not contain a report which could inspire confidence. Firstly, It is recorded on 18th of a month. However, the number or description of the month is missing. On that date it is reported that the person to whom the letter is addressed has gone out of station and would return after 7 days. Then on 24.12.1986 it is recorded that the person was not at home. However, there is a tampering even of the date "24th". Again on 26.12.1986 report is made that he was not available at his home. Again there is a tampering in the noting of the month mentioned on 26th. Suddenly on 27th of December, 1986 word "refusal" is recorded. One can hardly understand that if the person was not available at home and earlier was out of station and he never met the postman or the postman did not record that the addressee was trying to avoid service, how could the report of refusal be given.

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8. The procedural provisions are intended to further the cause of justice and to determine the real controversy between the parties. They are not intended to grant any undue benefit to a party over the other in complete contradiction to the spirit of procedural law. Reference in this regard can be made to a judgment of this Court in the case of Balwant Singh and others vs. Dalip Kaur and others, 1998(1) PLR 865 (:1999(1) PLJ 687) . The Court, thus, must record its satisfaction in regard to the report of refusal and that would be deemed to be service in accordance with law, then alone direct ex parte proceedings to be taken against the person. The zimni orders and the order directing ex parte proceedings of the trial Court does not indicate recording of satisfaction upon

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perusal of the records.

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9. The process server concerned has failed to act in consonance with the provisions of Order 5 Rules 17 and 18 of the Civil Procedure Code. Even if it is assumed for the sake of arguments that the service of summons was refused by the defendant, in that event he was obliged to paste or affix copy of the summons and plaint on the outer door or some other conspicuous part of the house in which the defendant was stated to be residing. Thereupon the process server is required to make report in that behalf and then alone report of refusal can be treated as deemed service in law. The copy of the summons on record does not show that the process server had complied with these statutory provisions. It appears that the attempt was made to somehow get an order directing ex parte proceedings against the defendants.”

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Learned counsel for the petitioner has further cited judgment passed by this Court in Pritam Singh vs. Raj Kumar, 2013

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(4) R.C.R (Civil) 126 , in which it is held as under:-

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“5. It is a suit for specific performance in relation to an agricultural land of 16 kanals that was valued of ` 1 lakh in the year 1989, I have no doubt in my mind that the property must be a very valuable property now. The case has also stood on for more than 2 decades but the application is required to be seen as though the application is taken up immediately after the order was passed by the courts below and I cannot take the pendency of the petition without a final decision to cloud the consideration on merits. On such a test, I am of the view that to allow for rights of parties to be concluded merely on an endorsement of refusal by the bailiff or a statement of a plaintiff's witness, who is the most interested persons to state that they apprised the defendant about the decree seem too harsh. I cannot take the issue of dismissal of a yet another suit filed by the plaintiff at about the same time as totally irrelevant, for that, it has at least explained that the defendant could not have remained without a contest if he had known about the same. On the subject therefore of refusal of endorsement in the summons, the statutory presumption under Section 114 of 'may presume' will have to give way to direct provisions under the Civil Procedure Code itself. Order 5 Rule 7 CPC details a procedure to be followed when the defendant refuses to accept service or cannot

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be found. The requirement is that the serving officer shall affix the copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinary resides and carries on business. In this case, at the previous hearing for a service made to the same address, a return was made that he was not residing at the same address and I do not know as to how any affixture could have been made if there was a refusal of service of summons. The procedure again to be followed in a case where the refusal is endorsed allows the Court to look for better evidence in appropriate cases. In my view, it was one such appropriate case where the court must have allowed for something better in the manner Order 5 Rule 19 declares. 6. Order 5 Rule 19 CPC reads as follows:-

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“ 19. Examination of serving officer.- Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.” In this case, if the presumption of official act does no more than to set a party to look for either an affirmation or denial, the moment denial is made by service, the presumption is of no significance. In this case, the presumption is supplanted by the statutory prescription itself under Order 5 Rule 19 CPC requiring the serving officer to be examined.

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7. The test of how a burden is discharged is brought through Section 102 of the Evidence Act, as follows:-

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“ 102. On whom burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

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The test shall be as to what is to happen if no evidence is given on either side and that is how the burden is to be seen. A person, who was relying therefore that there was a valid service of notice, and yet another person contending that he was not served at all and that he never refused, if both the parties did not given any evidence, it would have only resulted in a finding that there was no service. The burden, in this case, must therefore be on the person, who affirmed that there was a valid service which was refused and it will be an untenable argument to

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make that the defendant must put the court bailiff in witness-box as his witness to deny that he did not serve the summons and that the defendant did not refuse to receive the same. It will be inverting a legal logic to levels which the statute does not provide for. I will, therefore, reject the argument that there had been any valid service of notice.”

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Learned counsel for the petitioner has also cited judgment passed by the Hon'ble Supreme Court in Sushil Kumar Sabharwal vs. Gurpreet Singh, 2002(1) PLJ 456 , in which it is held as under:-

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“8. We find several infirmities and lapses on the part of the process server. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process wherever to witness the proceedings and be a party to the procedure of the service of summons but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt. Incidently, we may state that though the date of appearance was 23rd February, 1993 the summons is said to have been tendered on 22nd February, 1993, i.e., just a day before the date of hearing.

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9. The appellant has himself appeared in the witness box and deposed on oath that no summons was tendered to him by any process server of the Court. It is a case of oath against oath. In view of the facts which we have noticed here-in-above clearly the oath of the appellant was more weighty than the oath of the process server. In the ordinary course of events, the court of facts should have discarded the statement of the process server and believed the statement of the appellant.”

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I have gone through all the above-cited judgments and the same fully apply to the facts in the present case.

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On the other hand, learned counsel for the respondent has cited judgment passed by the Hon'ble Delhi High Court in Mr.Sudarshan Sareen vs. National Small Industries Corporation Ltd. and another, 2014(2) CivCC 697 . I have gone through this cited judgment and the same having distinguished facts will not apply in the present case.

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Therefore, from the above discussion, I find that impugned order dated 03.04.2001 passed by learned Addl. Civil Judge (Senior Division), Rajpura and judgment dated 18.08.2003 passed by learned Addl. District Judge (Adhoc) Fast Track Court, Patiala are not as per law and the same are set aside. The application filed under Order 9 Rule 13 CPC filed by the applicant/petitioner is accepted. The ex parte judgment and decree dated 05.06.1991 is set aside. The trial Court is directed to register the suit at its original number and decide the same on merits as per law.

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Accordingly, finding merit in the present revision petition,

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the same is allowed.

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September 15, 2014 Vgulati

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(INDERJIT SINGH) JUDGE

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Prem Singh and Ors. v. Bal Kishan and Ors.

Case brief

What is this about?

What did the court decide?

Prem Singh and Ors. v. Bal Kishan and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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