IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 73 of 2010 Judgment reserved on: 13.9.2010. Date of Decision: 22.9.2010. M/s.Dee Kay Industries and another ..Petitioners. Versus. H.P. Financial Corporation and another ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? . Yes For the Petitioner (s): Mr.G.C. Gupta, Senior Advocate with Mr.Pawan Sharma, Advocate. For the Respondent(s): Mr.J.L. Kashyap, Advocate for R-1. Deepak Gupta, J. This case reveals a shocking state of affairs which shows that when the Presiding Officers of the Courts do not keep track of the cases, the same linger on for a long period of time and it takes ages to decide even small applications. This petition is directed against an order whereby the order dismissing the civil suit filed by the plaintiff-respondent No.1 in default has been recalled and the suit restored to its original number. This Court would normally not interfere with such an order. However, in this case it is necessary to deal with the case in detail. 2 The case has a long and chequered history which shows how cases in our country are delayed unnecessarily. Respondent No.1 HPFC (hereinafter referred to as the plaintiff) filed a suit against the present petitioners ( hereinafter referred to as the defendants) for recovery of Rs.1,22,715/- in the Court of learned Senior Sub Judge, Shimla on 22.6.1995. Notices were ordered to be issued to the respondents for 30.8.1995. Service could not be effected upon the defendants and the summons came back unexecuted on a number of occasions. It would not be out of place to mention that the plaintiff could not serve the defendants for 30.8.1995, 22.11.1995, 8.11.1996 when they were directed to file process fee and correct addresses. No process fee or correct addresses were filed on 2.7.1996, 16.10.1996, 15.3.1997 and 6.6.1997. It was only thereafter that steps were taken but again the defendants could not be served for 22.9.1997. Thereafter, the case was adjourned on two dates since there was no Presiding Officer on one date and on the next date the case was fixed for proper orders. Thereafter, on 12.1.1998 fresh notices were ordered to be issued to the defendants for 19.5.1998. The case was thereafter kept for proper orders and notices were issued to the defendants on 3 9.7.1998 for 28.8.1998. Defendants were not served and notices were again issued for 3.11.1998. On 3.11.1998 the plaintiff was directed to take steps for the service of defendants for 24.2.1999. On 24.2.1999 counsel for the plaintiff did not appear. The case was called both in the morning and the afternoon session and since none appeared it was dismissed in default. The record shows that almost for about 3 ½ years no effective steps were taken to serve the defendants. The learned trial Court did not deem it fit to direct the process serving agency to affix the summons on the addresses given. The plaintiff could have been asked to take dasti summons for the service of the defendants. However, nothing in this behalf was done and the case proceeded at a snail’s pace showing that the Presiding Officers had virtually no control over the proceedings and in all probability the case was being handled by the Reader who was granting dates in a routine manner. Should a case remain pending for service of defendants for 3 ½ to 4 years? It is not as if the defendants were living abroad but they were in the neighbouring States of Haryana, Punjab and Delhi. No 4 orders were passed to have them served through registered post or through speed post. The second portion of the case depicts an even more miserable story. On 17.8.2001, that is, more than one year and six months of the dismissal of the suit, an application was filed for restoration of the suit. The way this application has been drafted also shows that the same was signed by the Manager (Legal) of the plaintiff and the counsel without even caring to read the same. As noted above, the suit was dismissed in default on 24.2.1999. In the heading of the application it was mentioned that the case was dismissed in default on 22.4.1999. In para 2, it was mentioned that the suit seems to have been dismissed in default on 24.2.1999 and in para 4 it is stated that it was on 5th June, 2001 that the Financial Corporation came to know about the dismissal of the suit which was dismissed on 24.4.1999. In para 6 it was stated that there is sufficient cause for setting aside the dismissal of the suit on 23.3.1993. Thus, four dates were given in the application regarding the dismissal of the suit. This shows a totally careless attitude on the part of the Corporation in drafting the application. Along with this application, an application for condonation of delay 5 under Section 5 of the Limitation Act was also filed. The explanation given by the Corporation for condoning the delay and setting aside the order of dismissal of the suit in default was that the Corporation had entrusted the case to Sh.D.S. Verma, Advocate. It was further averred that the file of the case in the office of the Corporation was mixed up with some other record and thereafter no action was taken till this file was traced some time in the month of May, 2001. Thereafter, the case was entrusted to Sh.J.L. Kashyap, Advocate who informed the Corporation that the suit had been dismissed in default. The application even thereafter was filed only on 14.8.2001 and there is no explanation worth the name as to why from 5.6.2001 till 14.8.2001 no action was taken to tile the application. Even in the application under Section 5 there is no explanation in this regard. The manner in which the Court dealt with the application also leaves much to be desired. This application was filed on 17.8.2001and came up for substantive hearing on 23.11.2001 when notice was ordered to be issued to the respondents for 4.1.2002. Again the defendants were not served on various dates such as 4.1.2002, 13.3.2002, 9.5.2002, 25.6.2002, 6.8.2002 6 and 13.9.2002. Defendant No.3 was served on 4.1.2002. For the first time on 13.9.2002 it was ordered that in case service of summons issued for 7.11.2002 cannot be personally effected on respondents 1&2 then service be effected through affixation. Despite this service was not effected and summons were not received back and the case again proceeded merrily at a snails pace only for service of the respondents till the year 2005. Fresh summons were issued on 24.6.2005 on which date the Court ordered as follows: “Respondent No.1 and 2 not present despite service through their wives as the wives of the respondents refused to accept the delivery of notices on being tendered to them. Called thrice, again and again. None appeared on behalf of respondent No.1 and 2, hence respondent No.1 and 2 proceeded against ex-parte. Now put up for reply on behalf of respondent No.3 subject to time limit fixed under the law. List for 7.9.2005.” It is interesting to note that respondent No.1 is a firm and obviously cannot have a wife. The order of the Court again shows total non-application of mind. Thereafter, the respondents 1&2 were proceeded against ex-parte and the case fixed for reply by respondent No.3. Right to file reply by Respondent No.3 was closed and 7 thereafter the case was transferred and fresh notices were ordered to be issued to the respondent No.3 and his counsel who could not be served. Thereafter, on 13.10.2006 the Court proceeded ex- parte against all the respondents and directed that case be listed for evidence on the application filed under Section 5 of the Limitation Act. The case was adjourned to 6.12.2006 for this purpose when a request was made for adjournment on behalf of the plaintiff. The case was then adjourned to 1.3.2007. Again evidence was not present. The case was then adjourned for effective hearing for 25.5.2007. Again there was no evidence present. The case was thereafter adjourned to 11.7.2007 when a statement was made that no evidence on the application under Section 5 of the Limitation Act is intended to be led. The case was then listed on 24.8.2007 for consideration of the application filed under Section 5 of the Limitation Act. For this purpose also the plaintiff’s counsel sought dates on 24.8.2007 and 7.9.2007. On 10.10.2007 the Court passed a totally contradictory order. It directed that evidence on the application under Order 9 Rule 4 CPC and Section 5 of the Limitation Act be produced on 29.11.2007. Once 8 plaintiff had on 11.7.2007 stated that it did not want to lead evidence on the application under Section 5, the Court could not without recording reasons permitted the plaintiff to lead evidence on the application under Section 5 of the Limitation Act, especially when there was no request of the plaintiff to recall the earlier order whereby the plaintiff had stated that it did not want to lead evidence on the application for condoning the delay. Be that as it may, on 29.11.2007, three witnesses of the plaintiff were examined and evidence closed and the matter was put up for consideration. The matter was heard on 12.3.2008 when it was found that though right to file reply by respondent No.3 had been closed on 7.3.2006 but actually reply on behalf of respondent No.3 had been filed on 13.3.2006. It was found after three years that in fact there is no order whereby the respondent No.3 had been proceeded against ex-parte. Thus, for two years wrong orders were being passed that respondent No.3 had been proceeded against ex-parte. Neither counsel for the plaintiff nor the Judge had cared to see the record as to whether respondent No.3 had actually been proceeded against ex-parte or not. Notice was sent to 9 respondent No.3 and he was served through registered post for 9.9.2008 when he did not appear and he was then proceeded against ex-parte and the matter again was heard. As noted above the plaintiff had stated on 11.7.2007 that no evidence was to be led on the application under Section 5 of the Indian Limitation Act. Thereafter, it examined evidence on 29.11.2007 when the evidence on behalf of the plaintiff was closed. Surprisingly without even perusing the previous orders of 6.5.2009, counsel for the applicant prayed that he wants to produce some official in evidence. Without passing any detailed order this prayer was allowed and the matter ordered to be listed on 18.6.2009 when the affidavit of Sh.S.D. Sharma was tendered as his evidence. On 28.7.2009 the Court passed the following order: “Heard on application under Section 5 of the Limitation Act. Put up for orders on 1.8.2009” This order shows that hearing had only taken place on the application under Section 5 of the Limitation Act. Order was finally pronounced on 7.8.2009 and now by this order the Court did not only decide the application under Section 5 of the Limitation Act but also 10 decided the application under Order 9 Rule 4 CPC for restoration of the suit. This also shows total non- application of mind on behalf of the concerned Judge. This application has been allowed. Thereafter, in the main suit the defendants were served through publication and thereafter they appeared in the suit and also filed this petition challenging the order dated 7.8.2009. I have gone through all these orders in detail which shows that a number of Judicial Officers who conducted this case did not care to read the previous orders. No effort was made in the suit to have the defendants served for almost 3 ½ years. Even in the application for restoration no effective service was effected on respondent No.1 Firm. Respondent No.1 is a firm which was sued through Sh.Deepak Chadha who is also defendant No.2. The report on the summons issued for 24.6.2005 is that process server went to the house No.556, Sector 7, Panchkula when Deepak Chadha was not found at the home but his wife was found who orally informed the Process Server that Sh.Deepak Chadha had gone out of station. She read the summons but refused to accept the same. The report of the Process Server is neither supported by an affidavit nor is supported by the 11 statement of any witness. The report is not witnessed by any person. The name of the wife also has not been given. No doubt under Order 5 Rule 15 CPC service can be effected on an adult member of the defendant’s family but this can only be done when the defendant is absent from his residence at the time when the service of summons is sought to be effected and there is no likelihood of his being found at his residence within a reasonable time. The report of the Process Server is totally incomplete as to whether he made any inquiries as to when Deepak Chadha was to return to his house. Therefore, service on Deepak Chadha was totally improper. In view of the above discussion, I am constrained to allow the petition and set-aside the order of the learned trial Court dated 7.8.2009 whereby the order of dismissal of the suit in default has been recalled. The parties through their counsel are directed to appear before the learned trial Court on 18th October, 2010 on which date the petitioners -defendants shall file their replies to both the applications filed under Order 9 Rule 4 CPC and Section 5 of the Limitation Act. Issues, if any, shall be framed on the same date. The evidence has 12 already been led on behalf of the plaintiff. It shall be the duty of the plaintiff to ensure that all the witnesses examined by it in support of both the applications are produced for cross examination on 8th November, 2010. If, for any reason, they cannot be produced on 8th November, 2010 then they shall be produced on 9th and 10th November, 2010. In case the plaintiff is unable to produce any of four witnesses on whose statement it has relied upon the statement of such witness shall not be read in evidence. The respondents if they so desire shall produce any evidence which they want to produce on 22nd, 23rd or 24th November, 2010. Arguments shall be heard latest by 25th November and the applications disposed of in the month of November, 2010 itself. Since this case shows that a number of Officers handling the case from 1995 to 2009 did not even care to read the previous orders passed in the case and to me it appears that probably it was the ministerial staff which was passing the orders the Registrar, Subordinate Judiciary and Vigilance, is directed to send a copy of this judgment to all the Judicial Officers in the State who shall be directed to ensure that cases should not be conducted in such a careless manner. The Presiding 13 Officer of the Court should have full control over the Court proceedings. In future if such cases are brought to the notice of this Court strict action shall be taken. The petition is disposed of in the aforesaid terms. The HPFC shall pay costs of Rs.5000/- to the petitioners. September 22, 2010 ( Deepak Gupta ), J. PV