Allowed

M/S Rajasthan Tools and Spares v. M/S Clark Engineers

Rajasthan HC8 Aug 2019CMA/2932/2016

Case brief

AI extract

What is this about?

The High Court allowed a miscellaneous appeal against the dismissal of an application to set aside an ex-parte decree. The court held that the summons were improperly served due to missing court details, dates, and lack of defendant signature. Citing Sushil Kumar Sabharwal, it emphasized that ex-parte orders require strict proof of service. The appeal was allowed, ordering the appellant to deposit

What did the court decide?

Impugned order set aside. Appellant directed to deposit 50% of decreetal amount within two months; remainder to be dealt with in FDR. Suit to be decided by Trial Court within one year.

M/S Rajasthan Tools and Spares Vs M/S Clark… — Civil Procedure and Limitation | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Miscellaneous Appeal No. 2932/2016

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M/s Rajasthan Tools & Spares, Proprietorship Firm, through Proprietor Shri Dev Kumar Godika, aged about 69 years, by caste Jain, Sudarshanpura Industrial Area, Jaipur (Raj.)

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----Appellant-Defendant

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Versus

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Ms. Clark Engineers, Proprietorship Firm, through Proprietor B.L. Sharma S/o Late Shri Bhagwan Das Ji Sharma, by caste Brahmin, aged about 74 years, behind Rochies Watch, Road No.14, V.K.I. Area, Jaipur (Raj.)

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---Respondent-Plaintiff

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For Appellant(s) : Mr. Ansuman Saxena For Respondent(s) : Mr. Rahul Sharma

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HON'BLE MR. JUSTICE PRAKASH GUPTA

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Judgment

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08/08/2019 (Oral)

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Instant miscellaneous appeal is directed against the order dated 21.04.2016 passed by the Additional District Judge No.16, Jaipur Metropolitan, Jaipur (hereinafter referred to as the “trial Court”) whereby the application filed by the appellantdefendant under Order 9 Rule 13 CPC was dismissed.

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Brief facts of the case are that the respondent-plaintiff filed a suit against the appellant-defendant for recovery of Rs.2,36,871/-.

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In the above suit, when the appellant-defendant was not appeared, an ex-parte order was passed against him on

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(2 of 7)

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[CMA-2932/2016]

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28.02.2009 and finally ex-parte judgment and decree was passed on 25.07.2009.

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The appellant-defendant filed an application under Order 9 Rule 13 CPC to set aside the ex-parte judgment and decree. The application was dismissed by the trial Court vide impugned order dated 21.04.2016. The trial Court after discussing on the issue of service of the summons upon the appellantdefendant held that the service upon the defendants was proper and consequently dismissed the application.

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I have heard learned counsel for the parties.

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It is contended by learned counsel for the appellantdefendant that the service of summons was never affected upon the appellant-defendant. It is submitted that before passing exparte decree, the Court must be satisfied that the summons were duly served upon the defendant. The trial Court did not consider the material available on record in right perspective. The summons did not bear correct name of the Court where the appellant-defendant was to appear. No date of hearing was mentioned in the summons. It is submitted that acknowledgment receipt does not bear the signature of the appellant-defendant. The trial Court has failed to consider these material facts while deciding the application under order 9 Rule 13 CPC. It is prayed that appeal be allowed and ex-partee decree may kindly be set aside.

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On the other hand, learned counsel for the respondentplaintiff opposed the submissions made by the learned counsel for the appellant-defendant and supported the impugned judgment.

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(3 of 7)

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[CMA-2932/2016]

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I have considered the submissions made by the learned

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counsel for the parties and perused the material available on record.

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In my considered view, before passing ex-parte order, the Court must be satisfied that the summons were duly served upon the appellant-defendant. The knowledge about the pendency of the suit does not amount to knowledge about the date of hearing.

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In the case of Sushil Kumar Sabharwal vs. Gurpreet

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Singh & Others (2002) 5 SCC 377 , Hon’ble the Apex Court has held as under:-

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“7. Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read thus:

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"17. Procedure when defendant refuses to accept service, or cannot be bound.-Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant {who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time} and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door of some other conspicuous part of the house in which the defendant ordinarily reside or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

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18. Endorsement of time and manner of service.The serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served,

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(4 of 7)

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[CMA-2932/2016]

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and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.

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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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10. The learned counsel for the landlord-respondent submitted that there is an interpleader suit filed by the appellant because there was a dispute between the heirs of the original landlord who unfortunately died and his widow and the grandsons (who are the respondents herein), each of the two was claiming itself to be the landlord and entitled to recover rent setting up a will in its favour. The appellant has admitted in the plaint therein that he was aware of the pendency of the suit filed by the respondent in the court of the Rent Controller, Amritsar. In fact, this admission of the appellant has weighed heavily with

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(5 of 7)

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[CMA-2932/2016]

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the High Court which has opined that even if the summons was not duly served, the appellant was aware of the pendency of the suit and, therefore, the application under Order 9, Rule 13 C.P.C. did not have any merit.

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11. The High Court has over looked the second proviso to Rule 13 of Order 9 C.P.C., added by the 1976 Amendment which provides 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. It is the knowledge of the 'date of hearing' and not the knowledge of 'pendency of suit' which is relevant for the purpose of the proviso above said. Then the present one is not a case of mere irregularity in service of summons; on the facts is a case of nonservice of summons. The appellant has appeared in the witness box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim which he did not avail and utilise.

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12. The provision contained in Order 9 Rule 6 of the C.P.C. is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the Court depending on the given situation. The three situations are: (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the Court may make an order that the suit be heard ex-parte. The provision casts an obligations on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being 'proved' that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard ex-parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the Court to satisfy itself on the service of summons. Any default or casual approach on the part of the Court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex- parte

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(6 of 7)

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[CMA-2932/2016]

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decree or proceedings in the suit wherein he was deprived of hearing for no fault of his. If only the Trial Court would have been conscious of its obligation cast on it by Order 9 Rule 6 of the C.P.C., the case would not have proceeded ex-parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation. (emphasis supplied)

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13. Be that as it may, we are satisfied that the summons was not served on the defendant-appellant. He did not have an opportunity of appearing in the Trial Court and contesting the suit on merits. The Trial Court and the High Court have committed a serious error of law resulting in failure of justice by refusing to set aside the ex-parte decree.”

¶47

In the present case, it is noticed that the summons

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which were issued, do not bear correct name of the Court where the defendant was to appear and on a bare perusal of the summons, it reveals that on summons, no date of hearing was mentioned. It is also noticed that acknowledgment receipt does not bear the signature of the appellant-defendant but it bear signature of some Deepak. The appellant-defendant has not admitted his signatures on the acknowledgment receipt. Thus, the service of summons upon appellant-defendant vitiates on count of not mentioning the date of appearance before the trial Court as also the denial of signatures on the acknowledgment receipt. Therefore, the impugned order dated 21.04.2016 passed by the trial Court is liable to be set aside.

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In the result, the appeal is allowed and impugned order dated 21.04.2016 is set aside on the condition that the appellantdefendant shall deposit 50% of the decreetal amount within a period of two months from today failing which the application under Order 9 Rule 13 CPC shall stand dismissed automatically without further reference to this Court. On such deposit being

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(7 of 7)

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[CMA-2932/2016]

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made by the appellant-defendant, the same be invested in the FDR in a nationalised bank for a period of one year.

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Office is directed to send back the record of the case to the trial Court forthwith.

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The trial Court is directed to decide the suit expeditiously but not later than one year from the receipt of certified copy of this order.

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(PRAKASH GUPTA),J

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Mohit40

M/S Rajasthan Tools and Spares v. M/S Clark Engineers

Case brief

What is this about?

What did the court decide?

M/S Rajasthan Tools and Spares v. M/S Clark Engineers

Case brief

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What did the court decide?

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