Dismissed

Bhanwari D/O Faiz Mohd and Ors. v. Bhawari Devi and Anr.

Rajasthan HC1 Apr 2024CMA/2834/2016

Case brief

AI extract

What is this about?

In this appeal, the High Court of Rajasthan at Jodhpur dismissed the petitioners' challenge against the setting aside of an ex-parte decree. The court held that the summons service by defendants did not comply with Order 5 Rules 17 and 18 CPC due to missing witness identities and date corrections. Thus, the appeal to set aside the lower court order was dismissed. The suit was directed to be expedi

What did the court decide?

The appeal was dismissed. The Trial Court was directed to expedite the suit proceedings. Stay petitions and pending applications were disposed of.

Bhanwari D/O Faiz Mohd and Ors. Vs Bhawari Devi… — Execution and Attachment | Rajasthan HC (2024)

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[2024:RJ-JD:14328]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 2834/2016

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Bhanwari D/o Faiz Mohd W/o Kurda, For The Present Village- Padhihara, Tehsil Ratangarh, District- Churu

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Hasan @ Mustaq S/o Late Faiz Mohd, By Caste Kaji Resident Of Ward No. 26 Sardarsahar, District- Churu

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Rafiq S/o Late Faiz Mohd., By Caste Kaji, Resident Of Ward No. 26 Sardarsahar, District- Churu

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Mohd S/o Faiz Mohd, By Caste Kaji, Resident Of Ward No. 26 Sardarsahar, District- Churu

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Hajra @ Hajan D/o Faiz Mohd W/o Nawab Kaji, For The Present Mohalla Digga Bas, Tehsil- Dungargarh, DistrictChuru

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Bulkesh D/o Faiz Mohd, By Caste Kaji, Resident Of Ward No. 26 Sardarsahar, District- Churu

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----Appellants

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Versus

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Bhawari Devi W/o Hetram, By Caste Jangid Khati, Resident Of Dhani Rohi Bholusar, Tehsil- Sardarsahar, District- Churu

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Hetram S/o Motaram, By Caste Jangid Khati, Resident Of Dhani Rohi Bholusar, Tehsil- Sardarsahar, District- Churu

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----Respondents

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For Appellant(s)	: Ms. Arzoo Khan through VC
	Mr. Siddharth Mewara
For Respondent(s)	: Mr. B.K. Bhatnagar

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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01/04/2024

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The present miscellaneous appeal has been preferred against the order dated 27.08.2016 passed by Additional District Judge, Churu in Civil Original Case No.11/2013 (61/2012) whereby application under Order 9 Rule 13 read with Section 151, CPC as preferred by the defendants-respondents has been allowed and as a consequence, the ex-parte decree dated 17.11.2012 passed by

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District Judge, Churu in Civil Original Suit No.47/2012 in favour of plaintiffs-appellants has been set-aside.

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Brief facts of the case are that a suit for cancellation of sale deed dated 19.05.2006 and perpetual injunction was preferred by the plaintiffs with the submission that the defendants-respondents had fraudulently got the sale-deed registered in their favour by the appellants. It was pleaded that the actual fact is that the plaintiffs had borrowed an amount of Rs.15,000/- from the defendants and put their thumb impression on the document pertaining to the loan agreement. The defendants, on the premise of getting the mutation entries entered in the name of plaintiffs, took them to the office of Tehsildar and in conspiracy with the revenue officers, got the sale-deed registered in their name which the plaintiffs are entitled to get cancelled.

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In the said suit, vide order dated 28.07.2012, the matter was directed to be proceeded ex parte against the defendants as despite service, none had put in appearance on their behalf. Ultimately, after the plaintiff evidence been recorded, the suit was decreed vide judgment and decree dated 17.11.2012 in favour of the plaintiffs and the sale-deed dated 19.05.2006 was directed to be cancelled. Further, the defendants were restrained from transferring or alienating the property in question.

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An application under Order 9 Rule 13 read with Section 151, CPC was preferred by the defendants with the submission that they were never served in the suit. It is only on 25.11.2012, when plaintiff Nos.2 & 3 entered the land in dispute and threatened the defendants to vacate the land, that they came to

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know about the decree dated 17.11.2012. Hence, a prayer to set aside the said decree was made and it was prayed that the defendants be granted opportunity to file their defence as well as to contest the suit on merits.

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The said application as preferred by the defendants was allowed vide order dated 27.08.2016 against which the present appeal has been preferred on behalf of the plaintiffs.

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Learned counsel for the appellants submitted that it is clear on record that the summons were refused to be accepted by defendant No.1-Bhanwari and hence the summons were affixed, in terms of law, in presence of two independent witnesses. The service was hence, complete. Despite service, none appeared on behalf of the defendants and hence, the learned trial Court rightly proceeded ex parte against the defendants.

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Learned counsel, in the alternate, submitted that even if it is assumed that notice was not properly served, it is clear on record that the defendants were very well aware of the next date of hearing and hence, the said non-service would be of no consequence. Therefore, in terms of proviso to Order 9 Rule 13, CPC also, the order impugned deserves interference. Learned counsel submitted that the order impugned being totally in contravention to the settled position of law deserves to be set aside and the appeal deserves to be allowed.

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Per contra, learned counsel for the respondents submitted that the finding as arrived by the learned trial Court is totally in consonance with the settled position of law. A bare perusal of the report on the summons as alleged to have been served, makes it

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clear that the same cannot be termed to be a proper service in terms of law. Learned counsel therefore, submitted that the order impugned does not deserve any interference.

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

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The question that arises for consideration in the present appeal is whether the summons in the suit proceedings were served on the defendants in a manner which can be termed to be proper and in terms of law?

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Order 5 Rules 17 & 18, CPC read as under:

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" 17. Procedure when defendant refuses to accept service, or cannot be found .-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 on 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 or some other conspicuous part of the house in which the defendant ordinarily resides 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, and the name and address of the person (if any) identifying the person served

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and witnessing the delivery or tender of the summons."

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A plain reading of the aforesaid rules clarifies that where defendant refuses to sign the acknowledgment, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides and shall return the original to the Court with a report endorsed thereon 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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Rule 18 specifically provides for endorsement of time and manner of service.

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A perusal of the summons as alleged to have been served in the present matter, makes it clear that the same does not, in any manner, comply with the provision of Order 5 Rules 17 & 18, CPC. Firstly , it does not specify the identity of the alleged witnesses who identified the house of the defendants. Secondly , even the names of the so called witnesses are not clear. There is a clear cutting and correction in the said names too. Thirdly , there is a correction even in the date as mentioned on the summons and the said correction cannot be said to be bonafide as it is not on one place. The correction in the date has been made on all the three places wherever the date on the summons has been mentioned.

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The learned Trial Court also, while keeping into consideration the said discrepancies, specifically observed as under:

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“ izLrqr okn esa oknh izfroknhx.k ds fuokl LFkku dks igpku okys O;fDr dh “kgknr izkIr ugha dh xbZA LFkkuh; ekSrchj O;fDr;ksa

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dh mifLFkfr esa izkFkhZ izfroknhx.k ds edku ds lgt n”; Hkkx ij rkfey dh p”ikuxh ugha dh xbZA LFkkuh; ekSrchj xokgku ds irs vafdr ugha fd;s x;sA rkfey dqfuUnk }kjk fuokl LFkku xkao Hkksywlj esa igpku dh fnukad ij dfVax gs nksuksa lEeu ifr iRuh ds gS] ftl ij ,d ekSrchj vyx&vyx gS ekSrchj jQhd [kka ds vaxwBs fu”kkuh ij dfVax gSA vr% izLrqr U;kf;d n’Vkar esa izfrikfnr vfHker ds n`f’Vxr izkFkhZ izfroknhx.k ij fof/kuqlkj rkfey ugha gqbZA ”

¶57

So far as the ground of the defendants being aware of the next date of hearing is concerned, there is nothing available on record to suggest so. It cannot be presumed that the defendants were aware of the next date of hearing and ought to have presented themselves on the said date.

¶58

In view of the above observations, as this Court has reached to a conclusion that service of the summons was not proper and not in terms of law, the order impugned dated 27.08.2016 does not deserve any interference.

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The present appeal is hence, dismissed .

¶60

As is clear on record, although there was no interim order operating in the present appeal, as the record had been called for and was lying before this Court, no further proceedings in the suit have been undertaken and it remains pending at the same stage.

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In view of the same, the learned Trial Court is expected to expedite the suit proceedings now.

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The stay petition and all pending applications, also stand disposed of .

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(REKHA BORANA),J

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659-T.Singh/-

Bhanwari D/O Faiz Mohd and Ors. v. Bhawari Devi and Anr.

Case brief

What is this about?

What did the court decide?

Bhanwari D/O Faiz Mohd and Ors. v. Bhawari Devi and Anr.

Case brief

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What did the court decide?

What the court decided

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