Dismissed

Lrs of Laxman Ram v. Babli

Rajasthan HC10 Apr 2023CW/648/2020

Case brief

AI extract

What is this about?

The High Court at Jodhpur dismissed a writ petition seeking to set aside an ex parte decree in a civil suit for money recovery. The reasons for dismissal were that the defendants had refused to accept the summons sent by registered post, resulting in presumed due service, and thus failed to justify setting aside the decree.

What did the court decide?

None. The writ petition seeking to set aside the ex parte decree and impugned orders was dismissed as the summons were deemed duly served due to refusal by the petitioners.

Lrs of Laxman Ram Vs Babli — Property and Title | Rajasthan HC (2023)

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[2023/RJJD/008574]

[CW-648/2020]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 648/2020

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Lrs Of Laxman Ram, S/o Hanuman Ram, Through-

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Bharat S/o Late Laxman Ram, Aged About 25 Years, Pali. 3. Chaina W/o Late Laxman Ram, Aged About 47 Years, By Caste Darji, R/o 256, Mohani Niwas, Ashapura Nagar, Pali, Tehsil And District Pali, Rajasthan.

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----Petitioners

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Versus

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Babli W/o Jagdish, By Caste Nai, R/o 28, Outside Ojha Ji Ka Bas, Pali, Tehsil And District Pali, Rajasthan.

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----Respondent

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For Petitioner(s) : Mr. Moti Singh For Respondent(s) : Mr. S.S. Gour for Mr. R.S. Choudhary

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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Reserved on 04/04/2023

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Pronounced on 10/04/2023

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This writ petition under Article 226 of the Constitution of

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India has been preferred claiming the following reliefs:

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“A. It is, therefore, most respectfully prayed that this writ petition may kindly be allowed,

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B. By an appropriate writ, order or direction order may kindly be issued and allow the application under Order 9 Rule 13 CPC (Annexure-4) may kindly be allowed and the judgment and decree dated 12.03.2019 may kindly be set aside.

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C. By an appropriate writ order direction may kindly be issued and the order dated 03.08.2019 (Annexure-6) as well as the order dated 09.12.2019 (Annexure-8) passed by the learned court below in civil Misc. Case No.22/2019 and Civil Appeal Order No.26/2019 LR’s of Laxman Ram & Anr. vs. Smt. Babli may kindly be quashed and set aside.

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D. Any other appropriate writ, order or direction, which this Hon’ble Court may deem it just and proper in the facts and the circumstances of the case may kindly be issued.

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E. Costs of this writ petition may kindly be awarded in favour of the petitioners.”

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Brief facts of the case, as placed before this Court by learned counsel for the petitioners, are that the respondent (plaintiff) filed a civil suit, before the Court of Senior Civil Judge, Pali, against the petitioners (defendants) for recovery of a sum of Rs.2,09,000/-; whereupon, the learned Court below issued the summons, and thereafter, since no one appeared on behalf of the present petitioners (defendants) despite service, therefore, the learned Court below vide judgment and decree dated 12.03.2019 decreed the said suit, ex parte, against the present petitioners (defendants).

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2.1. Thereafter, the respondent (plaintiff) filed an execution application and the learned Executing Court issued the recovery process against the present petitioners. The present petitioners filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte judgment and decree dated 12.03.2019. the learned Court below vide the impugned order dated 03.08.2019 rejected the said application; whereupon, the present petitioners (defendants) filed an appeal, against the impugned order dated 03.08.2019 under Section 104 CPC before the Court of learned District Judge, Pali, but the said appeal was also dismissed vide the impugned order dated 09.12.2019 dismissed the said appeal. Hence, the present petition has been preferred claiming the aforequoted reliefs.

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Learned counsel for the petitioners submitted that the aforementioned suit was registered on 08.08.2018, and on that date, ordered issuance of summons for 10.09.2018; despite the fact that no proper service of summons was effected upon the petitioners (defendants), the learned Court below on 10.09.2018, drew an order-sheet to the effect that the summons have been received unserved, and directed the respondent (plaintiff) to file fresh PF & summons, while fixing the next date as 15.10.2018; therefore, as per learned counsel, the learned Court below did not properly examine the material available on record before it, while decreeing the suit ex-parte against the petitioners (defendants).

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3.1. Learned counsel further submitted that according to Exhibits 25 to 28 makes it clear that the summons, in envelopes, were sent by an Advocate and not by the learned Court below, and also the said envelopes were not having any connection with the summons sent by the learned Court below, in the aforementioned suit.

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3.2 He also submitted that the process server has made a report to the effect that on the relevant date, the house was found to be closed, which cannot be termed as refusal of the service, in absence of any specific report in that regard.

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3.3 Learned counsel also submitted that on 02.10.2016 19.10.2016, the respondent (plaintiff) furnished an affidavit and receipt to the effect that she has received an amount of Rs.2,00,000/- from the petitioners (defendants).

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3.4 Learned counsel thus submitted that in view of the aforesaid backdrop, the impugned orders passed by the learned courts below are not sustainable in the eye of law.

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3.5 In support of his submissions, learned counsel relied upon the judgment rendered by the Hon’ble Apex Court in the case of Sushil Kumar Sabharwal Vs Gurpreet Singh and Ors. (Appeal (Civil) No. 5111 of 2000) decided on 23.04.2002.

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On the other hand, learned counsel appearing on behalf of the respondent (plaintiff), while opposing the aforesaid submissions made on behalf of the petitioners (defendants), submitted that the learned Court below has proceeded with the trial of the suit ex-parte after receiving the envelop/registered notices with an endorsement that the petitioners (defendants) refused to receive the summons.

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4.1 Learned counsel further submitted that the summons were issued by learned Court below on 08.08.2018, while fixing the date of hearing; on the next date, the registered A/D was received by the office of the learned court below with an endorsement that the petitioners refused to receive the summons.

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4.2 He further submitted that the learned Court below has clearly recorded in the order that the petitioners had intentionally and deliberately refused to receive the summons, and therefore, the ex-parte decree passed by learned Court below, the impugned order rejecting the petitioners’ application under Order 9 Rule 13 CPC, as also the impugned order of the learned appellate court are justified in law.

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4.3. In support of his submissions, learned counsel relied upon the judgment rendered by the Hon’ble Apex Court in the case of Vishwabandhu Vs Sri Krishna and Anr. (Special Leave Petition (Civil) D. No. 1855 of 2020) decided on 29.09.2021.

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Relevant portion of the said judgment read as under;

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“19. The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr2 made following observations:-

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“14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh3 : State of M.P. vs.

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Hiralal & Ors.4 and V. Raja Kumari vs. P. Subbarama Naidu & Anr.5 ]. … ….”

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20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1. 21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant.

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22. We, therefore, allow these Appeals, set aside the orders dated 21.04.2006 and 18.10.2019 passed by the High Court and dismiss the application preferred by Respondent No.1 under Order IX Rule 13 of the Code. No costs.”

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4.4. He further relied upon the judgment rendered by a Coordinate Bench of this Hon’ble Court in the case of Smt. Rajjo Vs. Satish Kumar (S.B. Civil Misc. Appeal No. 710/2012) decided on 16.01.2017) .

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Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar.

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This Court observes that the respondent (plaintiff) filed the recovery suit against the petitioners (defendants), and after issuance of the summons to the petitioners (defendants), but on count of refusal to accept such summons by the petitioners, the learned Court below passed the ex-parte decree against the

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present petitioners; whereafter, the present petitioners filed an application under Order 9 Rule 13 CPC, but the same was dismissed vide the impugned order dated 03.08.2018, and the appeal preferred against the said order, was also dismissed vide the impugned appellate order dated 09.12.2019.

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This Court further observes the suit filed by the respondent (plaintiff) against the petitioners (defendants) was instituted on 08.08.2018 and on the same day, summons were issued to the present petitioners (defendants). The learned Court below also recorded that the order-sheet dated 03.11.2018 (Annexure-2) clearly reveals that the present petitioners refused to receive the summons issued by the learned Court below.

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This Court finds that the learned Court below in the impugned order dated 03.08.2019 has observed that the documents i.e. Exhibits No. 25, 26, 27, and 28, which are closed envelopes (bearing then necessary particulars) containing the summons, and the same were returned by the postal department with an endorsement that the same were refused to be accepted, meaning thereby, the present petitioners have refused to receive the summons contained in the said closed envelopes. This Court also finds that the report dated 28.08.2018 made by the Process Server (Savar) clearly reveals that the summons issued by learned Court below were not accepted by the present petitioner. 9. This Court also observes that the ex-parte judgment and decree passed by the learned Court below deserves to be set aside, upon an application preferred under Order 9 Rule 13 CPC, only ‘in any case in which a decree is passed ex parte against a

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defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing’. However, in the present case the summons were duly sent to the present petitioners, but they refused to receive the same; thus, the summons were rightly treated to be duly served upon the present petitioners.

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This Court further observes that in the judgment rendered by the Hon’ble Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and Anr. AIR 2007 SC (Supp) 1705, which was also referred in Vishwabandhu (Supra), it has been held, ‘ Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed’.

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10.1 Adverting to the facts of the present case, it is clear from the record that the petitioners (defendants) have refused to accept the summons duly sent by the learned court below, and such factum has also been observed by the learned courts below in the impugned orders.

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The judgment cited by learned counsel for the petitioners

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does not render any help to the case of the petitioners herein.

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Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petition.

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Consequently, the present petition is dismissed. All pending applications stand disposed of.

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(DR.PUSHPENDRA SINGH BHATI), J.

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SKant/-

Lrs of Laxman Ram v. Babli

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Lrs of Laxman Ram v. Babli

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